Bombay High Court
Jamshed Noshir Sukhadwalla And 4 Ors vs Union Of India And 11 Ors on 30 November, 2018
Author: Naresh H. Patil
Bench: Naresh H. Patil, R.G. Ketkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2890 OF 2018
1. Jamshed Noshir Sukhadwalla
of Mumbai Indian Inhabitant
residing at 512 Jagannath Shankar
Sheth Road, Varaya House, 1st Floor,
Mumbai - 400 002.
2. Behruz Nariman Irani
3. Ratan Dorab Patel
Petitioner Nos.2 and 3, Trustees and
authorized signatories of the Shah
Varzaavand Trust having its office at
¼ Mehta Bldg., Khan Estate
MMC Rd. Mahim - 400 016.
4. Ervad Dr.Rooyintan Peshotan Peer
of Mumbai Indian Inhabitant
residing at 23, Police Court Lane, Fort,
Mumbai 400 001
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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:22 ::: 5 wp_2890.18.j.doc from the said Atash Behrams as may cause damage to the structure of the Atash Behrams and/or cause the water in the wells situated in the Atash Behrams to be affected in any manner;
a-1) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Nos.1 to 4 to construct the proposed Kalbadevi Station at such a distance from the H.B. Wadia Atash Behram that it does not cause any damage to the structure of the H.B.Wadia Atash Behram and/or cause the water in the wells situated in the H.B. Wadia Atash Behram to be affected in any manner;
b) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ in the nature of mandamus or any other appropriate writ, order, or direction directing the Respondent Nos.1 to 4 to realign the Metro Rail 3 construction in such a manner that the metro tunnel and/or any other construction does not pass underneath the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:22 ::: 6 wp_2890.18.j.doc H.B.Wadia or Zarthosti Anjuman Atash Behrams and at such a distance from the said Atash Behrams as may cause damage to the structure of the Atash Behrams and/or cause the water in the wells situated in the Atash Behrams to be affected in any manner;
c) This Hon'ble Court be pleased to direct the Respondent Nos.1 to 4 to disclose on oath all the plans, diagrams, layouts, reports, blueprints, structural engineer reports, Environmental Impact Assessment report and/or any other information with respect to the proposed metro construction beneath the two Atash Behrams on Jagannath Shankar Sheth Road, i.e. H.B. Wadia Atash Behram and Zarthosti Anjuman Atash Behram;"
2. This petition was filed on 21st May, 2017. It is contended that Petitioner No.1 is an individual practicing the Zoroastrian faith and is a civil and structural engineer by profession.
Petitioner No.1 is an alumnus of Veermata Jijabai Technological ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:22 :::
7 wp_2890.18.j.doc Institute (hereinafter referred to as 'VJTI' for short) and the Jamnalal Bajaj Institute of Management, Bombay. Petitioner Nos. 2 and 3 are trustees of the Shah Varzaavand Trust, which is a public charitable trust registered under the Maharashtra Public Trusts Act, 1950 with inter alia the object of protecting the interests of the Zarthushtis. Petitioners Nos. 2 and 3 crave leave to refer to and rely upon a copy of the Trust Deed as and when produced. Petitioner No.4 is a renowned religious scholar of the Zoroastrian faith and a qualified priest. Petitioner No.4 has derived the knowledge in connection with the spiritual aspects mentioned hereinafter from accepted practices, long standing traditions, scriptures, customs and teachings. Petitioner No.5 is an individual practicing the Zoroastrian faith and is a renowned legal practitioner and solicitor. Respondent No.3 Mumbai Metropolitan Regional Development Authority (MMRDA) has been entrusted with the responsibility of executing and maintaining various infrastructure projects. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:22 :::
8 wp_2890.18.j.doc Respondent No.4, Mumbai Metro Rail Corporation Limited (MMRCL) is a company incorporated under the Companies Act and is a joint venture between the Government of India and the Government of Maharashtra. Respondent No.4 proposes to construct a metro rail which is known as the Mumbai Metro Rail Project. Respondent Nos.5 to 9 are the trustees of Zarthoshti Anjuman Atash Behram Trust which is the trust looking into the administration of Zarthoshti Anjuman Atash Behram. Respondent Nos.10 to 12 are the trustees of the Hormasji Bomanji Wadia Fire Temple Charity Fund which is the trust looking into the administration of H.B.Wadia Atash Behram. Respondent Nos.1 to 4 have decided to execute a project in various phases for running a metro rail underground as per the plan. The project includes Mumbai Metro Line 3 which is a long corridor running along Colaba-Bandra-SEEPZ. A part of this Mumbai Metro Line 3 has been proposed to run under Jagannath Shankar Sheth Road.
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3. The petitioners state that Jagannath Shankar Sheth Road is a very congested road and some of the structures are heritage structures, including two of the most holy Zoroastrian Fire Temples of the Highest Degree (Atash Behrams), Viz. H.B. Wadia Atash Behram and Zarthosti Anjuman Atash Behram.
4. According to petitioner the construction of H.B. Wadia Atash Behram was completed in the year 1830 around 188 years ago. The Zarthosti Anjuman Atash Behram has been constructed in the year 1897 around 122 years ago. This Atash Behram's foundation stone was laid by Dasturji Dr.Jamaspji Minocherji JamaspAsa on 17th October, 1897. It is the petitioner's case that these Atash Behrams have been consecrated over a century ago after performing complex and elaborate rituals by highly trained priests and have a special spiritual and religious significance for individuals practicing and professing the Zoroastrian faith. Both ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:22 ::: 10 wp_2890.18.j.doc these structures have been classified as heritage buildings under Regulation 67 of the Development Control Regulations 1991.
5. The petitioners further submit that Mumbai Metro Line3 is proposed to go directly under these two Atash Behrams. If the proposed Metro Line 3 is allowed to go through according to plan then it will lead to desecration of holy consecrated Atash Behrams. The project would endanger structural safety of these Atash Behrams which are heritage structures. The project would also cause the wells in the Atash Behrams to run dry. It is stated that in the Zoroastrian religion, the fire is considered as the son of the Supreme Creator Ahura Mazda since it is the living symbol on earth representing Ahura Mazda. The fire is, therefore, the central focus of all Zoroastrian ceremonies and rituals as a divine source of spiritual energy. The fire temples were built in honour of the divinity presiding over the fire and consecrated physical forms of ever-burning fires were installed in ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:22 ::: 11 wp_2890.18.j.doc the sanctum sanctorum of the respective fire temples. There are 3 grades or categories of sacred fires: 1) The sacred fire of the Atash Behram, which is of the highest grade. 2) The sacred fire of the Atash Adaran. (3) the sacred fire of Atash Dadgah. The first 2 grades are necessarily consecrated fires and are installed in separate chambers. They are served five times daily during the day and night through ceremonies known as boe and care is taken that the fires are continuously burning. These fires are attended to by qualified priests. Both these above Atash Behrams house all three grades of Holy fire within the premises of the respective Atash Behrams installed at separate places within the said premises.
6. It is the petitioner's case that the entire structure of the Atash Behram is a composite integrated whole and includes the sacred fire of the Atash Behram. The entire Atash Behram premises is consecrated. According to petitioner during the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:22 ::: 12 wp_2890.18.j.doc process of consecration and enthronement, the holy fire, is connected spiritually to the Mother Earth from which it draws sustenance. The petitioner refers to a book namely The Religious Ceremonies and Customs of the Parsees by Ervad Shams-UI- Ulama Dr. Sir Jivanji Jamshedji Modi, a renowned author on Zoroastrian religion. A relevant page from Dr. J.J.Mody's book is annexed to the petition (Exhibit 'C')
7. The petitioners state that the process of consecration of an Atash Behram is an elaborate and intricate procedure involving highly-trained priests performing various complex rituals. In modern times it is virtually impossible to consecrate a fire temple of the Highest Degree viz. an Atash Behram. Therefore, its rarity has to be preserved. There are only 8 such Atash Behrams in India. In fact, the last Atash Behram being Zarthosti Anjuman Atash Behram was consecrated over 122 years ago. Thereafter, there has never been consecration of any Atash ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:23 ::: 13 wp_2890.18.j.doc Behrams in India. It is virtually impossible today to consecrate an Atash Behram due to a variety of reasons including non- availability of the trained priests and the complex rituals that go into the process of consecrating Atash Behrams. Reference was made to the book written by Dr.J.J.Mody. The petitioners had in detail described the ceremonies performed in the temple. The inner liturgical services are described in Paragraph-11 as under:
"11. In the Zoroastrian faith, ceremonies can be broadly divided into 1) inner liturgical services 2) outer liturgical services. The inner liturgical services are those religious services which can be performed in a separate place specially allotted for the purpose. Such a place is known as Urvisgah and is generally connected with the fire temple. These types of ceremonies are intricate in nature and demand a very high degree of purity and rigorous workout. Only highly-trained priests known as Yaozeathregars could perform such ceremonies. These priests are first required to undergo the highest form of purificatory ritual known as Barashnum (9 days and 9 nights of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:23 :::
14 wp_2890.18.j.doc retreat) and then could perform such ceremonies. They also have to observe and maintain some very stringent laws of purification. These ceremonies are therefore generally spoken of as pav-mahal ceremonies, i.e.ceremonies of the holy or consecrated house. The secluded places required for the purpose of performing inner liturgical services are marked by formation of boundary lines which are the karsha. The karsha is also intended to preserve the efficacy of the consecrated fire and the consecrated articles of the sacred ceremonies within them. Further as stated above, inner liturgical services are performed in special places known as the Urvisgah which is within the premises of the Atash Behram. The Karshas extend to and cover the entire premises of the Atash Behram. If a tunnel is allowed to pass under the Atash Behram premises it will amount to a breach of the Karshas which are the protective circuits protecting the sacred fires consecrated and enthroned within the Atash Behram premises." In Paragraph-13 the petitioners state as under:-
"13. It is stated that if a tunnel for the metro is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:23 :::
15 wp_2890.18.j.doc allowed to be bored under the premises of the above Atash Behrams, the spiritual circuits will be breached and negative forces of physical and spiritual will attack the holy fire, thus diminishing its spiritual prowess. It is believed that there is a constant requirement for the Atash Behrams to be connected with Mother Earth. The connection has to be an uninterrupted connection with the core and the centre of the earth from which the vibrations and waves emanate. All higher ceremonies are enjoined to be performed with connection to Mother Earth so as to impact and give force to the culmination of their spiritual effect. The electromagnetic field of the earth known as geomagnetic field is generated in the core of the earth and the magnetic field so generated is required to be constantly connected with the Atash. Construction of tunnel under the Atash Behram premises will severely affect these vibrations and the connection with the fire." The petitioners state that besides spiritual damage there is a distinct possibility that there is physical damage to the structure ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:23 ::: 16 wp_2890.18.j.doc of the two Atash Behrams. They have referred to damage caused to nearby building Jer Mahal Annexe, situated where Kalbadevi Road meets Jagannath Shankar Sheth Road which suffers significant damage. In a similar case pertaining to metro construction in the city of Chennai, it is stated that 121 years old Arcot Lutheran Church developed cracks as a result of tunnel boring machines operating underneath the building as part of the metro rail tunneling work. The petitioner referred to Preconstruction Building Condition Survey Report for Mumbai Metro Project Line 3 (Colaba-Bandra-Seepz) dated 14 th March, 2017.
8. The petitioners, therefore, submitted that in case the metro tunnels are permitted to pass under the Atash Behram premises, the same would violate the petitioners' fundamental rights under Articles 14,21, 25 and 29 of the Constitution of India. In case Metro tunnel is allowed to be bored under the premises of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:23 ::: 17 wp_2890.18.j.doc Atash Behrams, the spiritual circuits will be breached and negative forces of physical and spiritual will attack the holy fire, thus diminishing its spiritual prowess. It is believed that there is a constant requirement for the Atash Behrams to be connected with Mother Earth. The connection has to be an uninterrupted connection with the core and the center of the earth from which the vibrations and waves emanate. All higher ceremonies in the Atash Behram are enjoined to be performed with connection to Mother Earth so as to impact and give force to the culmination of their spiritual effect. The electromagnetic field of the earth known as geomagnetic field is generated in the core of the earth and the magnetic field so generated is required to be constantly connected with the 'Atash' (fire). Construction of tunnel under the Atash Behram premises will severely affect these vibrations and connection with the fire. Ground I and Ground L-1 of the Petition read as under:-
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18 wp_2890.18.j.doc "I- Because the Respondent Nos.1 to 4 have failed to appreciate that certain rituals are conducted at the time of enthronement of the holy fire in the Atash Behram which enable the holy fire to draw sustenance from Mother Earth. During the process of consecration, great care was taken along with a number of ritual precautions to maintain this connection and sanctity. According to tradition, pav mahal ceremonies cannot be performed on an elevated place, that is to say, on the upper floor of a house or a building. They are to be necessarily performed on the ground floor, that too, with direct connection to Mother Earth. The belief is that there should be no motion or movement beneath it (Baaj dharnane Lagti Pav Mahalni Kriyao by Hormuzd Pavri pages 56 - 57). If a tunnel were to be bored under the Atash Behram premises, that would result in the premises being considered to be on an elevated level and the connection with the ground would be deemed to be breached.
Accordingly, it will result in the spiritual violation of the sanctity of the Atash Behram. Further, any motion or movement under the Atash Behram premises would directly interfere with the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:24 ::: 19 wp_2890.18.j.doc spiritual sanctity of the Atash Behram, hence resulting in its desecration. The connection between mother earth and the Atash Behram cannot be broken."
"L-1. Because Respondent No.4 has failed to appreciate the possible effects of the proposed construction of Kalbadevi station on the structural stability of the H.B. Wadia Atash Behram which is just a few metres away from the Wadiaji Atash Behram. The station construction method to be adopted by Respondent No.4 includes an element which involves a process of conducting controlled blasting to create caverns at the location of the proposed station which will more severely and directly impact the structural stability of the structures in the vicinity including the Wadiaji Atash Behram. The entire area comprising weak buildings categorized by Respondent No.4 itself as "severe" and "very severe" could be damaged in the process. The Petitioners understand that there will be a further effect on structures due to more severe vibrations anticipated from controlled blasting and secant piling as compared to tunnel boring by ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:24 :::
20 wp_2890.18.j.doc giant tunnel boring machines (TBM)."
9. The petitioners submit that pursuant to the order of the High Court dated 23rd May, 2018 the petitioners' advocate addressed a letter dated 28th May, 2018 to Advocate for respondent no.4 inter alia requesting them to furnish detailed plans relating to the project so as to participate effectively in the hearing to be held by the Committee of respondent no.4. The documents provided were not complete for effective participation. It is submitted that plan shows that distance between H.B. Wadia Atash Behram and the proposed Kalbadevi metro station is approximately 5 meters which is likely to cause structural damage to the Atash Behram. It is submitted that the station construction method to be adopted by Respondent No.4 includes an element which involves a process of conducting controlled blasting to create caverns at the location of the proposed station which will more severely and directly impact the structural ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:24 ::: 21 wp_2890.18.j.doc stability of the structures in the vicinity including the Wadiaji Atash Behram. The petitioners' state that the conduct of respondents 1 to 4 is arbitrary and violates petitioners' rights under Article 14 of the Constitution of India. Respondents 1 to 4 are providing vague and unsatisfactory response to the communications made and issues raised from time to time. The petitioners have placed relevant correspondence on record. On 23rd May, 2018 the Division Bench (Vacation Court) passed an order. Clause-5 of the ad-interim order reads as under:-
"v. The statement made by the learned Advocate appearing for Respondent No.4 that until next date of hearing, Respondent No.4 shall not carry out any drilling work beyond the boundaries of Atash Behrams, is accepted. It is also clarified that Respondent No. 1 to 4 shall not claim any equities in response to the submissions made by the Petitioners seeking directions against Respondent Nos. 1 to 4 to realign the metro rail construction."::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:24 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:24 ::: 23 wp_2890.18.j.doc Institute to submit its report to this Court within a period of 10 days from the date on which the operative part of this order is served in the office of the Veermata Jijabai Technological Institute;
(iii) If it is necessary to enter the premises of the subject Atash Behrams, Veermata Jijabai Technological Institute will do so after giving advance notice in writing to the Trustees;
(iv) Veermata Jijabai Technological Institute will ensure that the experts who enter the premises of Atash Behrams and their colleagues/assistants are the persons practicing Zoroastrian faith as only such persons are allowed to enter the premises;
(v) Veermata Jijabai Technological Institute will submit two copies of the report to the Prothonotory & Senior Master of this Court within a time fixed as aforesaid and also provide copies thereof to the advocates for the Petitioners and the 4th Respondent;
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:24 ::: 25 wp_2890.18.j.doc the State Government to file a Reply making its stand very clear on the challenge involved in the Petition;
(xi) The Reply shall be filed on or before 4th August 2018. In any event, even if such Affidavit in Reply is not filed by both the Governments, they will make their stand very clear on 6th August 2018, when the matter is taken up for hearing as to interim relief;
(xii) Place the Petition at 3.00 p.m. on 6th August 2018 for hearing as to interim relief;
(xiii) If the parties are desirous of filing additional Affidavits, the same shall be done latest by 4th August 2018;
(xiv) We direct Veermata Jijabai Technological Institute and all concerned parties to act upon an authenticated copy of the operative part of the order."
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26 wp_2890.18.j.doc The aforesaid ad-interim relief granted still continues.
11. The petitioners filed affidavit of Scholar Priest in support of the contentions raised in the petition. Affidavits of Petitioner No.1 and respondent No.5 are placed separately on record. Respondent No.5 states that Atash Behram is a composite whole comprising not just the consecrated fire enthroned in the sanctum sanctorum but also includes, within its definition, the entire premises of Atash Behram. It is stated that in case the tunnel were to be made beneath the Atash Behram, the sanctum sanctorum would be considered to be on an elevated level and its paivand or connection deemed to be lost. The spiritual circuits will be breached if the Metro tunnel goes underneath. The proposed construction is in violation of customs, traditions, accepted practices, beliefs, teachings and also the tenets prescribed by the religious scriptures of Zoroastrians. The correspondence made to the Principal Secretary by Mr.Vada Dasturji, Dr.Kaikhusroo M. Jamasp Asa is also placed on record. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:24 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:25 ::: 28 wp_2890.18.j.doc states that construction of the MML-3 is being carried out by respondent no.4 after exercising the extensive due diligence. Paragraph-7 of the affidavit-in-reply reads as under:
" 7. That the construction of the MML-3 is being carried out by the Respondent No.4 after exercising extensive due diligence. A detailed protocol has been laid down for the protection of heritage buildings such as the Atash Behrams and other buildings from the impacts of tunneling and excavation works. The subject buildings are assessed and categorized based on the structural health of the building. In cases where the health of the structure is precarious, protection and mitigation measures are undertaken and continuous monitoring is undertaken during construction. A copy of the report titled "Approach to Protection of Heritage (and other) Buildings ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:25 :::
29 wp_2890.18.j.doc from Impacts of Tunneling and Excavation Works"
is attached hereto and marked as Annexure-2.
That as per the Building Condition Survey Report (hereinafter referred to as "BCS report"), the Anjuman Atash Behram is classified as 'Slight', (i.e. Building with Moderate non-structural cracks, severe non-structural cracks and presence of water seepage.) Further the BCS report for Wadiaji Atash Behram classifies it as 'Moderate' building category, (i.e. Building with minor, sporadic spalled concrete and presence of water seepage). It is stated that although 280 meters of tunneling work has been undertaken in the Kalbadevi area by Respondent No.4 underneath buildings categorized as "Severe", (i.e. Building with Major extensive spalled concrete, bulging of structural and load bearing elements, exposure of reinforcement bars of columns and beams and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:25 :::
30 wp_2890.18.j.doc presence of water seepage), and "Very Severe" (i.e. Building with Deteriorated structural/load bearing elements, heavily exposed reinforcement in columns and beams of framed structures, deflected/tilted and propped structural elements and water leakages) as per the BCS report, no data recording settlements, tilt or change in the crack width with respect to such buildings have been recorded. Further, the same construction techniques have been employed in various areas of Mumbai city without any adverse incidents. It is also pertinent to note that in spite of repeated requests, Respondent No. 10 to 12, being Trustees of the Hormasji Bomanji Wadia Fire Temple Charity Fund, have restrained Respondent No. 4 from undertaking Building Condition Survey through a Parsi contractor or installing monitoring instruments within the premises. It is in the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:25 ::: 31 wp_2890.18.j.doc interest of all concerned the such surveys, assessments and scientific monitoring be carried out. Such exercises would present the likelihood of any prospective damage. In light of the facts stated hereinabove, it is apparent that the Petitioners have relied on mere speculations and not actual facts to state that the construction of MML-3 threatens the structural integrity of the Atash Behrams. This contention has been dealt with more elaborately below.
14. As regards the contentions raised in Paragraphs 9 to 13 of the petition, the respondent in Paragraph-17 of the affidavit-in- reply contends as under:-
"17. With regards to Paragraph 9 to 13 of the said Petition, the Petitioners must be put to strict proof regarding the contents of the said paragraph.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:25 :::
32 wp_2890.18.j.doc It is humbly submitted that the Petitioners have failed to establish the fact that if the tunnel is allowed to pass beneath the premises of the Atash Behrams, an essential and integral part of the Zoroastrian faith would be defeated. It is submitted that although the authority cited by the Petitioners, being "The Religious Ceremonies and Customs of the Parsees by Dr. Jivanji Jamshedji Modi" prescribes the rituals of consecrating the holy fire at an Atash Behram in exhaustive detail (Exhibit-D of the Petition), including the final enthronement of the holy fire, no reference has been made by the author which would mandate that the passage of a tunnel beneath the premises of an Atash Behram would defile the sanctity of the holy fire.
b. It is humbly submitted that the 'Karshas' referred to in paragraph 11 of the Petition are explained in the "The Religious Ceremonies and Customs of the Parsees by Dr. Jivanji Jamshedji Modi" (2nd Ed.; Jehangir B. Karani's Sons; Bombay). The author defines 'Karshas' as "trench or a furrow". It is further stated by the author that, "At times, sacred or consecrated things or ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:25 ::: 33 wp_2890.18.j.doc materials are to be kept, for the time being, within a limited space or enclosure, so that persons other than the officiating priests may not come into contact with them. The person in charge of the things, placing the things on the ground, draws round it a temporary circle, trench or furrow. Suppose it is the consecrated urine or water that he carries and in travelling, he has to place these things aside for a time. Then, he places them on the ground and immediately draws, with a nail, a circle or a furrow or trench round it. It need not be very deep. This process, viz., placing the things within the circle so formed, indicates, that it is free from the contact of other undesirable persons or things." Thus, it is clear from the portion cited from the aforementioned book that 'Karshas' are in fact trenches drawn on the ground surrounding a consecrated object so as to indicate that the article placed within the 'Karsha' is free from contact from other undesirable persons/objects. c. Considering the aforementioned definition and function of a 'Karsha', it cannot be said that a tunnel passing 60-65 ft. below the ground level will breach a 'Karsha' and therefore defile the sanctity ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:25 ::: 34 wp_2890.18.j.doc of all that is placed within the same. Copies of the relevant pages from 'The Religious Ceremonies and Customs of the Parsees by Dr. Jivanji Jamshedji Modi" are annexed hereto and marked as Annexures-3. It thus appears that the 'Karshas' mark the boundary of the objects or areas they try to protect. These boundaries do not preclude the High Priests from entering the area enclosed. There is no reference that seems to suggest that the 'Karshas' extend indefinitely under the surface of the earth, nor is there any reference to suggest that they are intended to so extend beneath the marked area in order to protect any 'link' according to the Petitioners which exist in the ceremonial fire in the Fire Temple and the fires that burn inside the earth. The Petitioners have also not shown any basis which supports the contention that the fire which is ignited after following the required rituals is connected to subterranean fires beneath the surface or that the Atash Behram is required to be in constant connection with any electromagnetic field for receiving vibrations. In any case, assuming, though not admitting, that there exits ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:26 ::: 35 wp_2890.18.j.doc some basis in the religious texts, such belief or any practice related thereto cannot be understood to constitute the essence of Zoroastrian faith, as it will at best be understood to be a belief or practice. The Right to Religion contained in Articles 5 and 26 is held to extend its protection of only those religious practices without which a given religion would lose its specific identifiable character. This respondent submits that the questions to be asked are:
i. would a tunnel passing below the Fire Temples destroy the character of fire that is kept in the temple rendering it to be no longer a sacred object; and ii. Will the underground tunnel alter or destroy the character of Zoroastrian religion that it will no longer be recognizable as the religion that is in practice since its inception.
d. It is respectfully submitted that the Petitioners have failed to prove that the passage of the metro tunnel underneath the premises of the Atash Behrams would lead to destruction of an essential practice of the Zoroastrian faith which destroys the very religions itself and therefore, the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:26 ::: 36 wp_2890.18.j.doc submissions of the Petitioners in the aforementioned paragraph lack any merit."
The deponent submits that there is no reason to conclude that the minuscule physical vibrations emanate from metro line would interfere with the spiritual vibrant emanating from the holy fire housed in the two Atash Behrams. The deponent states that water levels of the Atash Behrams have been fluctuating inspite of the fact that no metro construction had been undertaken in the area. The petitioner failed to bring on record any material to suggest that tunnel at 60-65 ft. depth passing basalt rock layer could affect wells which are nearly 42 to 46 feet away in top soil layer. It is contended that as directed by High Court vide order dated 23rd May, 2018 a Committee of 5 Directors of respondent no.4 accordingly heard the parties including the petitioners, their Advocate, Architects nominated by the petitioners, High Priests of various Atash Behrams and Trustees of the Atash Behrams. During the hearing the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:26 ::: 37 wp_2890.18.j.doc Attendees put forth their concern from various standpoints with regards to MML-3. They also submitted an alternate plan for alignment of the upline of the MML-3. After considering the entire record it was concluded that the shift in tunnel proposed by the Architects nominated by the petitioners was not feasible. However, the Committee took note that upper track could be shifted from 3.5 meters towards the JSS road from its presently proposed location due to reduction in size of the central NATM tunnel of station structure. According to respondents the concern of the petitioners and the interested parties would get addressed accordingly. It is submitted by the respondents that they had issued notification dated 12th December, 2011 calling for suggestions and objections as a part of the Social and Environmental Impact Assessment Study regarding MML-3. Further, a Public Consultation notice on 5th April, 2012 inviting suggestions and objections related to MML-3 project was issued by the Respondent No.4. A public hearing was scheduled on 11 th ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:26 ::: 38 wp_2890.18.j.doc April, 2012. It is submitted that no representations were made as per the notifications or at the public meeting by the petitioners or the Trustees.
15. The Respondents have annexed relevant communications and correspondence as referred in the affidavit.
16. The conclusion drawn by the Committee of five Directors of the MMRCL as directed by the High Court vide order dated 23 rd May, 2018 is also placed on record. The conclusions drawn by the Committee are as under:-
"The Committee in the deliberation above has dealt with all the issues that were brought before it in the hearing dated 8 th June, 2018 in the petition and also in the written submission dated 11th June, 2018. Committee has left out any deliberation on the legal aspects as a matter pending before the Hon'ble High Court.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:26 :::
39 wp_2890.18.j.doc The Committee considers that, while the concept plans given by the Petitioners are not feasible, the alternative plan of the MMRC for the Kalbadevi station would allow shifting of upper track by 3.5 m towards JSS road from its present location. This will reduce the extent of tunnel alignment within Wadiaji Atash Behram and the Anjuman Atash Behram by similar margins. The Report of the Committee is submitted in pursuant to directions of the High Court and vide order dated 23rd May, 2018."
17. The petitioners have further placed an affidavit of Ervad, Dr. Parvez Minocher Bajan in support of their contentions and translation from Gujarati to English of Article dated 27 th February, 1955 from 'Parsi Avaz'. Petitioners also placed written material from Ervad Phiroze S. Masani, religious alumnus and opinion report of Architect Hafeez Contractor and other ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:26 ::: 40 wp_2890.18.j.doc Consultants, photographs, drawings, plans in support of their contentions.
18. The arguments of Mr. Seervai, the learned Senior Counsel for the petitioners on structural aspect are as under:
The learned Senior Counsel submitted that the Pre construction building condition survey Report of respondent no.4 dated 14 th March, 2017 records that structural health of H.B.Wadiaji Atash Behram is generally unsatisfactory. The distance between H.B.Wadia Atash Behram and proposed Kalbadevi metro station is approximately 5 meters. The controlled blasting method will more severely and directly impact the structural stability of the Wadiaji Atash Behram. Some of the controlled blasting operations will actually be carried out underneath the Wadiaji Atash Behram. This significantly increases the risk of serious damage to the structure of Wadiaji Atash Behram. Respondent no.4 has shared with the petitioners diagrams/plans, depicting ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 ::: 41 wp_2890.18.j.doc the NATM technique which involves "controlled blasting". The Counsel submitted that even when an explosion is planned in a controlled manner, serious accidents can happen. Alternate plan of respondent no.4 shows that solution is still possible for shifting the Kalbadevi station. The Counsel has referred to Articles showing damaged building, photographs and other material on record.
The Wadia building which is situated right next to the H.B.Wadiaji Atash Behram and which is also 188 years old, developed huge cracks on 11th July, 2018. It is significant to note that lower tunnel crossed the concerned structure around 14 th July, 2018 and cracks developed on 11 th July, 2018. The respondents were informed of this and the Municipal and MHADA authorities also through their Engineers on 11 th and 12th July, 2018 inspected the damage to the said building and reported the matter to their seniors to take further action. Respondent No.4 also conducted a pre-construction Building ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 ::: 42 wp_2890.18.j.doc Condition survey and prepared a report.
19. The learned Senior Counsel has referred to VJTI report which was submitted consequent to order passed by this Court on 25th July, 2018. The learned Senior Counsel submitted that no independent analysis has been done by VJTI which defeats the entire purpose for which it was appointed. The report is merely a compilation of data provided and analysis done by respondent no.4 Consultant/Contractors. The submissions made by the petitioners were completely ignored. The conclusions arrived at by the VJTI are based on visual inspection without carrying out any standard test. As per the AASHTO guidelines, the permitted limits of PPV for Wadiaji Atash Behram which is a heritage structure is 2.54 mm/sec. The VJTI concluded that analysis performed by respondent no.4 shows that the maximum Peak Particle Velocity ("PPV"), which the Wadiaji Atash Behram would experience is 1.956 mm/sec. According to learned Counsel ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 ::: 43 wp_2890.18.j.doc the entire PPV analysis of VJTI is flawed.
20. The learned Senior Counsel submitted that the proposed location of Kalbadevi Station at such a closed proximity to a heritage structure and in particular controlled blasting, secant piling activities would result in the Wadiaji Atash Behram being subjected to a real and serious threat of the structural damage. In the submissions of the Counsel due to tunneling work cracks developed in Jer Mahal buildings and other old buildings in the surrounding area is an indication that tunneling work under the heritage structure under Atash Behram shall not be carried out at any cost.
21. As regards the VJTI Report, the Counsel further submitted that report is based on material supplied by respondent no.4. There is no independent assessment made by VJTI. The data relied upon by the VJTI has also been questioned by the Counsel. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 :::
44 wp_2890.18.j.doc The Counsel has further submitted that there are realignment options open but the respondent no.4 and other authorities are not interested into other options. The Respondents have adopted an adamant stand which is not in the interest of a minority community, its sentiments, religious feelings and established practices and beliefs. The learned Counsel made it clear that the Parsee community is a minority minuscule community in the country is not against the the public interest of running a metro project in the City of Mumbai. The only concern as shown by the community is that project shall not be implemented by causing loss and damage to the structure and defiling the faith and sentiments of the Parsee community.
22. The learned Counsel vehemently raised issues based on Article 25 of the Constitution of India. The Counsel submitted that Atash Behrams are fundamental to Zoroastrian religion and core beliefs associated with consecration and preservation of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 ::: 45 wp_2890.18.j.doc spiritual sanctity of Atash Behrams which are integral of Zoroastrianism. The petitioners have put forth certain core beliefs by Zoroastrian religion in their pleadings as part of fundamental rights under Article 25 of the Constitution. The learned Counsel submitted that fire is central focus of the Zoroastrian religion. It has been documented that having arrived in India the Iranian migrants knew well that without the existence of Atash Behrams in India, the devotional life of Zoroastrians cannot be maintained over a long period of time. The process of consecration of Atash Behram is a complicated one. The belief of laying down spiritual circuits while consecrating an Atash Behram is also fundamental to the Zoroastrian religion. The Karshas extend to cover the entire premises of Atash Behram and also extend below the ground. The Counsel submitted that Pav mahal ceremonies cannot be performed on elevated place. Water from a well plays a significant role in the ceremonies performed by the community ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 ::: 46 wp_2890.18.j.doc priests in Atash Behram. Pure, clean water from wells within the Atash Behram premises are used for various ceremonies. Water drawn from pipe is not permitted. If tunnel is allowed to be bored, it would result in desecration of Atash Behrams and wells are likely to dry. The spiritual aspects and beliefs form an essential and integral part of the Zoroastrian religion. The same form an inextricable part of the belief system of the religion. The Counsel submits that petitioners are placing reliance on provisions of Article 25 of the Constitution of India.
23. The learned Counsel placed reliance on affidavits filed by respondent no.5 Vada Dastruji Dr.Kaikhusroo M.Jamasp, Scholar Priests, relevant extracts outline of Parsi History by Hormazdyar Kayoji Mirza, writings of "Religious Ceremonies and Customs of the Parsees" by J.J. Modi on Karshas.
24. The learned Senior Counsel Seervai submitted that the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 ::: 47 wp_2890.18.j.doc right to have a metro line cannot be termed as fundamental right under Article 21 of the Constitution of India. The Counsel submitted that even if it is held that right to Metro is fundamental right then said right is to be balanced with a fundamental right under Article 25. Total extinguishing of a right is not balancing. If the metro tunnel is allowed to run only along the proposed alignment directly under the Atash Behrams it will lead to trampling upon the fundamental rights. The petitioners have not remotely suggested that Mumbai Metro project should not be proceeded with. They have simply contended that a small shift merely by four meters more would result in shifting of tunnel outside the Atash Behram and would resolve the spiritual concerns under Article 25 raised in the petition. The Counsel, therefore, urged that a balance has to be drawn between these rights with a solution which protects and preserves the fundamental rights and does not further one right at the cost of another. The petitioners have at all times been ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 ::: 48 wp_2890.18.j.doc proactive; and made innumerable proposals to resolve the matter but the respondent no.4 has rejected their proposals in an arbitrary and unreasonable manner. The Counsel, therefore, submitted that the realignment is technically possible and feasible option which the Metro authorities ought to have considered and they can consider even now as the petitioners have proposed multiple options for carrying out realignment.
Learned Senior Counsel Seervai relied upon following decisions :
1. Sri Venkatamana Devaru Vs. The State of Mysore and others, AIR 1958 SC 255. Paragraphs 24,25 and 29 read as under:-
"24. Construing Art. 25(2)(b) in the light of Art. 17, it is arguable that its object was only to permit entry of the excluded classes into temples which were open to all other classes of Hindus, and that that would exclude its application to denominational temples. Now, denominational ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:27 :::
49 wp_2890.18.j.doc temples are founded, ex hypothesis for the benefit of particular sections of Hindus, and so long as the law recognizes them as valid-and Art. 26 clearly does that-what reason can there be for permitting entry into them of persons other than those for whose benefit they were founded? If a trustee diverts trust funds for the benefit of persons who are not beneficiaries under the endowment, he would be committing a breach of trust, and though a provision of the Constitution is not open to attack on the ground that it authorizes such an act, is it to be lightly inferred that Art. 25(2)(b) validates what would, but for it, be a breach of trust and for no obvious reasons of policy, as in the case of Art. 17? There is, it should be noted, a fundamental distinction between excluding persons from temples open for purposes of worship to the Hindu public in general on the ground that they belong to the excluded communities and excluding persons from denominational temples on the ground that they are not objects within the benefit of the foundation. The former will be hit by Art. 17 and the latter protected by Art. 26, and it is the contention of the appellants that Art. 25(2) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 ::: 50 wp_2890.18.j.doc
(b) should not be interpreted as applicable to both these categories and that it should be limited to the former. The argument was also advanced as further supporting this view, that while Art. 26 protects denominational institutions of not merely Hindus but of all communities such as Muslims and Christians, Art. 25(2)(b) is limited in its operation to Hindu temples, and that it could not have been intended that there should be imported into Art. 26(b) a limitation which would apply to institutions of one community and not of others. Article 26, it was contended, should therefore be construed as falling wholly outside Art. 25(2)(b), which should be limited to institutions other than denominational ones.
25. The answer to this contention is that it is impossible to read any such limitation into the language of Art. 25 (2)(b). It applies in terms to all religious institutions of a public character without qualification or reserve. As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 ::: 51 wp_2890.18.j.doc denominational temples would be comprised therein. The language of the Article being plain and unambiguous, it is not open to us to read into it limitations which are not there, based on a priori reasoning as to the probable intention of the Legislature. Such intention can be gathered only from the words actually used in the statute; and in a Court of law, what is unexpressed has the same value as what is unintended. We must therefore hold that denominational. institutions are within Art. 25 (2) (b).
29. The result then is that there are two provisions of equal authority, neither of them being subject to the other. The question is how the apparent conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. Applying this rule, if the contention of the appellants is to be accepted, then Art. 25(2)(b) will become wholly nugatory in its ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 ::: 52 wp_2890.18.j.doc application to denominational temples, though, as stated above, the language of that Article includes them. On the other hand, if the contention of the respondents is accepted, then full effect can be given to Art. 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Art. 25(2)(b) will prevail. While, in the former case, Art. 25(2)(b) will be put wholly out of operation, in the latter, effect can be given to both that provision and Art. 26(b). We must accordingly hold that Art. 26(b) must be read subject to Art. 25(2)(b)."
2. The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282. Paragraphs-17 to 19 read as under:-
"17. It will be seen that besides the right to manage its own affairs in matters of religion which is given by cl. (b), the next two clauses of Art. 26 guarantee to a religious denomination the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 ::: 53 wp_2890.18.j.doc right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, where as the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which cl. (b) of the Article applies. What then are matters of religion? The word "religion" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case it has been said : "that the term 'religion' has reference to one's views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with 'cultus' of form or worship of a particular sect, but is distinguishable from the latter." We do not think that the above ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 ::: 54 wp_2890.18.j.doc definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Art 44(2) of the Constitution of Eire and we have great doubt whether a definition of 'religion' as given above could have been in the minds of our Constitution- makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of belief or doctrines which are regarded by those who profess that religion as conductive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 :::
55 wp_2890.18.j.doc
18. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion' in Art. 25. Latham, C. J. of the High Court of Australia while dealing with the provision of S.116 of the Australian Constitution which 'inter alia' forbids the Commonwealth to prohibit the 'free exercise of any religion' made the following weighty observations :
"It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil government should not, interfere with religious 'opinions', it nevertheless may deal as it pleases with any 'acts' which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of S. 116. The Section refers in express terms to the 'exercise' of religion, and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 ::: 56 wp_2890.18.j.doc therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the Section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion".
19. These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under Arts. 25 and 26 on grounds of public order, morality and health. Clause (2) (a) of Art. 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-cl. (b).under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon cl (2) (a) of the Article and his contention is that all secular activities, which may ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:28 ::: 57 wp_2890.18.j.doc be associated with religion but do not really constitute an essential part of it, are amenable to State regulation."
3. Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853. Paragraph- 33 read as under:-
"33. The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt (1); Mahant Jagannath Ramanuj Das v. The State of Orissa (2); Sri Venkatamana Devaru v. The State of Mysore (3); Durgah Committee, Ajmer v. Syed Hussain Ali (4) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 58 wp_2890.18.j.doc which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion."
4.Tilkayat Shri Govindlalji Maharaj etc. Vs. State of Rajasthan and Ors. AIR 1963 SC 1638. Paragraphs-55 to 57 read as under:-
"55. . Articles 25 and 26 constitute the fundamenta1 rights to freedom of religion guaranteed to the citizens of this country. Article 25(1) protects the citizen's fundamental right to freedom of conscience and his right freely to profess, practice and propagate religion. The protection given to this right is, however, not absolute. It is subject to public order, morality and health as Art. 25(1) itself denotes. It is also subject to the laws existing or future which are specified in Art. 25(2). Article 26 guarantees freedom of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 59 wp_2890.18.j.doc denominations or sections thereof to manage their religious affairs and their properties. Article 26(b) provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion; and Art. 26(d) lays down a similar right to administer the property of the denomination in accordance with law. Article 26(c) refers to the right of the denomination to own and acquire movable and immovable property and it is in respect of such property that clause (d) makes the provision which we have just quoted. The scope and effect of these articles has been considered by this Court on several occasions. The word "religion" used in Art. 25(1), observed Mukherjea, J." speaking for the Court in the case of the Commissioner, Hindu Religious Endowments, Madras", is a matter of faith with individuals and communities and it is not necessarily theistic. It undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it is not correct to say that religion is nothing else but a ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 60 wp_2890.18.j.doc doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress."
56. In Shri Venkataramana Devaru Vs. State of Mysore, Venkatarama Aiyar J. observed "that the matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion."
It would thus be clear that religious practice to which Art. 25(1) refers and affairs in matters of religion to which Art. 26(b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by Article 25(1) and Art. 26 (b) extends to such practices.
57. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 61 wp_2890.18.j.doc religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question ? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 62 wp_2890.18.j.doc issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of the Durgah Committee, Ajmer v. Syed Hussain Ali, and observed that in order that the practices in question should be treated as a part of religion they 'must be
-regarded by the said religion as its essential and integral part ; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26."
5.The Durgah Committee, Ajmer and another Vs. Syed Hussain Ali and others, AIR 1961 SC 1402. Relevant portion of Paragraph-11 read as under:-
"11. Thus considered the High Court came to the conclusion that the several sections challenged by the respondents in their writ petition are ultra ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 63 wp_2890.18.j.doc vires. It has held that S. 2(b)(v) violates Art. 19(1)
(f), S. 5 violates Art. 26, S. 11(f) Arts. 19(1)(g) and 25(1), Ss. 11 (h) and 13(1) Art. 25, S. 14 Art. 19(1)
(f) and Ss. 16 and 18 Art. 14 read with Art. 32.
Having found that these sections are ultra vires the High Court has issued an order restraining the appellants from enforcing the said sections. In regard to Section 5 in particular the High Court has found that the said section is ultra vires inasmuch as it lays down that the the Committee shall consist of Hanafi Muslims without further restricting that they shall be of the Chishtia Order believing in the religious practices and ritual in vogue at the shrine. It may be added that since Section 5 which contains the key provision of the Act has thus been struck down, though in a limited way, the whole of the Act has in substance been rendered inoperative."
6.A.S. Narayana Deekshitulu Vs. State of A.P. and others, (1996) 9 SCC 548. Paragraphs-75, 85 & 86 read as under:-
"75. The Preamble of the Constitution sets out secularism, equality, fraternity, liberty of worship and faith and dignity of persons as integral scheme ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 64 wp_2890.18.j.doc of the Constitution in its march to establish an egalitarian social order. Fundamental Rights and Directive Principles seek to resuscitate them. In S.R. Bommai v. Union of India a larger Bench of none Judges has held that secularism is basic structure of the Constitution. Religious tolerance and equal treatment of all religious groups and protection of life, property and place of worship are essential parts of secularism. Profession, action and conduct of persons should be consistent with secularism and they need to be measured in that perspective.
85. Articles 25 and 26 deal with and protect religious freedom. Religion as used in these articles must be construed in its strict and etymological sense. Religion is that which binds a man with his Cosmos, his Creator or super force. It is difficult and rather impossible to define or delimit the expressions 'religion' or "matters of religion" used in Articles 25 and 26. Essentially, religion is a matter of personal faith and belief of personal relations of an individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 65 wp_2890.18.j.doc insentient beings and the forces of the universe. Religion is not necessarily theistic and in fact th ere are well-known religions in India itself like Buddhism and Jainism which do not believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam; Christians in Christ and Christianity; Parsis in Zoroastrianism; Sikhs in Guru Granth Sahib and teachings of Guru Nanak Devji, its found, which is a facet of Hinduism like Brahmo Samaj, Arya Samaj etc.
86. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with Religion, therefore, cannot be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believed in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:29 ::: 66 wp_2890.18.j.doc conscience and whatever moral or ethical principles regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters or religion or religious belief or practice."
7.Commissioner of Police and others Vs. Acharya Jagadishwarananda Avadhuta and another, (2004) 12 SCC ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:30 ::: 67 wp_2890.18.j.doc
770. Paragraph-9 reads as under:-
"9.The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion. (See generally the Constitution Bench decisions in Commr., H.R.E.v.Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Sardar Syedna Taher Saifuddin Saheb v.State of Bombay and Seshammalv.State of T.N. regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not.) What is meant by "an essential part or practices of a religion" is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:30 ::: 68 wp_2890.18.j.doc the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the "core" of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices."
8. Ratilal Panachand Gandhi Vs. State of Bombay and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:30 ::: 69 wp_2890.18.j.doc others, AIR 1954 SC 388. Paragraph- 13 read as under:-
"13. Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking or commercial or economic, character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:30 :::
70 wp_2890.18.j.doc affect the stability of the institution, proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar, J. in the case of -
'Jamshed Ji. V. Soonabai', and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj, Vyezashni, etc. which are sanctioned by the Zoroastrian religion were valid charitable gifts, the observations, we think are quite appropriate for our present purpose. "If this is the belief of the community", thus observed the learned Judge, "and it is proved undoubtedly to be the belief of the Zoroastrian community, - a secular Judge is bound to accept that belief - it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind".
These observations do, in our opinion, afford an indication of the measure of protection that is given by Art. 26(b) of our Constitution."
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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. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:30 :::
72 wp_2890.18.j.doc The Counsel submitted that consideration only of the breach of the petitioners' right under Article 25 would not lead to a proper or correct solution. It must be borne in mind that there are several rights that need to be balanced against each other. The proper approach to the case would require the balancing of the rights of the petitioners against the rights of the rest of the citizens. The other relevant aspect is the limitation of courts in passing judgment on technical matters. This would be relevant while the Court would consider petitioners' submissions on structural and technical aspects of the project and the alignment. The Counsel has further submitted that arguments concerning fundamental rights could be considered in two parts (a) Fundamental Rights versus Other Rights, and (2) The basis for assumption of the existence of Fundamental Rights.
26. The learned Senior Counsel submitted that petitioners have been at pains to assert that they do not complain of a ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 ::: 73 wp_2890.18.j.doc violation of Article 26 viz. The Fundamental Right to manage their religious affairs. This attempt is no doubt to avoid several Supreme Court judgments which, while dealing with the right under Article 26, spell out the limitations and requirements of the larger right to Freedom of Religion. Even if Article 25 is considered in isolation, it must be remembered that it forms a part of the scheme under the sub-chapter headed 'Right to Freedom of Religion' which includes Articles 25,26,27 and 28. Reading Article 25 in its proper context would indicate that not all religious rights can claim a constitutional protection which is extended only to essential religious practices. The wide proposition that all religious practices were protected by Article 25 as laid down in Shirur Math judgment has been significantly qualified to extend to essential religious practices and laid down tests to identify them. The Petitioners' submission that its right under Article 25 must prevail under all situations is, therefore, incorrect.
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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. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 :::
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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, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 ::: 76 wp_2890.18.j.doc practice, propagate' these beliefs. Unless the propositions by the petitioners in respect of practice and beliefs are established, the petitioners would not be entitled to seek protection under Article
25. The Counsel submitted that petitioners have failed to place before this Court necessary material in the shape of tenets, scriptures, documents to establish their rights. The petitioners submitted affidavits, Articles, Writings of Scholar Priests from the community. But the petitioners have failed to prove before the Court that such practices and beliefs are established one and essential feature of the Zoroastrians. The burden was on the petitioners and they failed to discharge their burden. It is submitted that except for evidence in the form of the statements in the affidavit, the petitioners have not produced any evidence (scriptures, religious texts etc.) in support of the assertions. Although the petitioners have brought on record a letter dated 8 th June, 2018, (pg 211 of the Petitioners' affidavit dated 13 th June, 2018) addressed by Vada Dasturji Khurshed Dastoor (High ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 ::: 77 wp_2890.18.j.doc Priest), the said High Priest has not filed any affidavit on oath to support the contentions of the petitioners. The Counsel appearing has submitted in respect of material placed on record by the petitioners as under:
"(a) As to the Affidavits of four High Priests of the Zoroastrian Parsi/Irani Community (pg. 148-161)
(i) Except for evidence in the form of their own statements in the aforementioned Affidavits that as per religious injunctions and customs, any construction underneath the Atash Behrams would disrupt the uninterrupted connection of the sacred Fire and the structure with Earth, and would breach the Karshas surrounding the structures causing desecration of the Atash Behrams, the four High Priests have not produced any evidence (scriptures, religious texts etc.) in support of these assertions.
(ii) Although the Petitioner has brought on record a letter dated 8th June, 2018 (Pg. 211 of the Petitioners' Affidavit dated 13 th June, 2018) addressed by Vada Dasturji Khurshed ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 :::
78 wp_2890.18.j.doc Dastoor (High Priest), the said High Priest has not filed any Affidavit on oath to support the contentions of the Petitioners. Thus, it is not correct that all High Priests have unanimously stated on Affidavit that construction of tunnel underneath the Atash Behram would lead to desecration / defilement of the structures. In any case the said letter does not prove the fact or their belief, or even that it was widespread.
The Affidavit of Mr. Ervad Dr. Parvez Monocher Bajan dated 11th July, 2018 (Pg. 497 in Rejoinder).
(i) The concerned Affidavit deals with the spiritual significance of a Karsha but does not state anywhere that these Karshas extend below the surface of the Earth.
(ii) Further no basis in terms of religious texts, etc. is shown to support the statement that if a tunnel passes underneath the Atash Behrams, it would lead to desecration of the structure.
(iii) this Respondent is not disputing that the Karsha have spiritual significance but contend that the Petitioners have not shown any proof in sacred texts that these Karshas extend beneath ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 ::: 79 wp_2890.18.j.doc the earth's surface to the centre of the earth. This Respondent also denies that any such connection would be breached if the Metro Tunnel is constructed.
(b) An Article dated 27.02.1955 in "Parsi Avaz"
(i) This Article also deals with the spiritual significance of a Karsha but does not state anywhere that these Karshas extend underneath the structure or that such Karshas would be breached if the any construction activity is carried out underneath the structure.
(ii) In any case the document is an article written in a journal / paper for readership within the Zoroastrian community. It is at best an expression of the author's ideas or beliefs. Without reference to some source in basic religious scriptures, it cannot be given any weight as evidence.
(c) Writings about Zoroastrian Religion and Ceremonies (pg. 512-514)
(i) The document is the opinion of a High Priest and cannot be considered as an essential religious practice as it does not derive its basis from any ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 :::
80 wp_2890.18.j.doc religious texts or scriptures and no reference is made to any such text or scripture.
(d) Zoroastrianism - Ancient and Modern
(page 517-518)
(i) The document is relied upon by the
Petitioners to contend that the concept of vibration was in existence in Ancient Zoroastrian culture. However, even this document does not show that any construction underneath would lead to breach of any spiritual circuit or disrupt the connection of the fire with the centre of the Earth. Affidavit in Rejoinder of the Petitioners (pg. 413- pg ..533)
(i) Para 21 to 28 of the Rejoinder deals with spiritual sanctity of the holy fire in Zoroastrian religion. This Respondent is not disputing the sanctity or the importance of fire to Zoroastrian religion. This Respondent is submitting that the Petitioners have failed to adduce evidence in the form of any religious texts or scriptures which demonstrate that such fire is connected to the centre of the Earth; and that such connection shall be breached if any construction work is carried underneath the Atash Behrams.
(ii) Para 29 to 34 of the Rejoinder deal with the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:31 ::: 81 wp_2890.18.j.doc spiritual significance of the Karsha. This Respondent submits that the averments made therein and the documents relied in such paragrahps fail to demonstrate that these Karshas extend beneath the surface of Earth or that any construction underneath the surface of the Earth would breach such Karsha.
(iii) Paras 34 to 41 deal with the composite nature of the entire structure. This Respondent submits that the only documents produced by the Petitioners in support of such contention are an Affidavit of a Parsi Scholar (Pg. 497) and an Article of the year 1955. These documents cannot be the basis of proving that the entire structure was consecrated.
(e) Khordeh Avesta (Pg...492-496) The verses relied by the Petitioners in Khordeh Avesta show the spiritual significance of a Karsha which is not disputed by this Respondent.
However, this text also does not demonstrate that these Karshah extend beyond the surface of the Earth. On the contrary, this document shows that Karshas are furrows drawn on the surface of the Earth to ensure that no pollution, impurity or filth ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:32 ::: 82 wp_2890.18.j.doc enter the place where a ceremony is performed."
31. The learned Senior Counsel submitted that Mumbai Metro Master Plan was first prepared in 2004 and has been amended at network level from time to time. The project alignment and details were published in all prominent newspapers calling for suggestions and objections but MMRC has not received any written submissions or objections in response to the notice. Public Consultation/Hearing was conducted on 11 th April, 2012. A proposal for project approval and Funding was submitted to Government of India through Government of Maharashtra. The project is to be implemented by MMRCL a Joint Venture Special Purpose Vehicle (JVSVP) with 50:50 equity participation by Government of India and Government of Maharashtra. A delegation of Technical and Finance professionals and officers visited Mumbai during 2011-2013. Government of Maharashtra concurred with the approval by GOI through a Cabinet Resolution to facilitate the Project implementation with all the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:32 ::: 83 wp_2890.18.j.doc enabling and complementing provisions. The Interim Consultants (IC) also prepared detailed engineering plans for the tunnel and stations for the entire corridor. The Interim Consultants were group of AECOM Asia (Hong Kong), PADECO (Japan), LBG Inc.(USA) and EGIS Rail (France) international engineering consulting companies of repute.
32. Keeping in line with the international project implementation practices followed by JICA, MMRC appointed General Consultants (GC) following the due process stipulated under JICA procurement Guidelines. The Civil Works contracts were awarded in July 2016.
33. The Counsel submits that MMRC is responsible for project implementation through the instruments of GC and the contractor put in place. MMRC is responsible for the co- ordination with all stakeholders be it Government of India, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:32 ::: 84 wp_2890.18.j.doc Government of Maharashtra, Regulatory Authorities, Local Authorities or public etc.
34. The learned Senior Counsel Shri Aney further submitted that petitioners must establish the following claims:-
(a) All three grades of sacred fires i.e. Atash Behram, Atash Adaran: Atash Dadgah are housed in the concerned Atash Behram.
(b) The entire structure of the two Atash Behram is a composite whole, and is consecrated.
(c) The Karshas which extend into the very core of the earth establish a protective consecrated area not only around the sacred fire, but also around the entire premises of the two Atash Behram.
(d) It is a belief of the community that the Karshas descending down into the core of the earth cause the sacred fire of the Atash Behram to be connected with the core of the earth, and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:32 ::: 85 wp_2890.18.j.doc
(e) An electromagnetic or geomagnetic field is generated in the core of the earth and is connected with the sacred fire in the Atash Behram through waves and vibrations.
Therefore, if a tunnel is dug or Metro 3 is operated under the premises of the two Atash Behrams, these spiritual circuits will be breached and negative forces will attack holy fire, thus diminishing its spiritual powers.
35. The Counsel submits that evidence sought to be relied on by the petitioners does not remotely prove either the existence of such wide spread beliefs or existence of any such connection between the holy fire, the Karshas and the earth's core. In absence of any scriptural and textual evidence, the Court cannot accord the practice status of an essential practice of a religion. The Court cannot rely merely on testimony (affidavits) without an enquiry into its basis in religious texts. Merely establishing usage will not accord a practice status of being essential. Essential would mean inextricably connected with its fundamental character.
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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, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:32 ::: 87 wp_2890.18.j.doc however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to (1) interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature;::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:32 :::
88 wp_2890.18.j.doc for it could not be the injunction, of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of article
26."
2. The Durgah Committee, Ajmer & anr. vs. Syd Hussain Ali and Ors. (supra). Relevant portion of Paragraph-33 reads as under:
"33. .......Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:33 ::: 89 wp_2890.18.j.doc religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."
3. Sardar Syedna Taher Saifuddin vs. State of Bombay AIR 1962 SC 853. Paragraph-33 reads as under:-
"33. The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:33 ::: 90 wp_2890.18.j.doc Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt (1); Mahant Jagannath Ramanuj Das v. The State of Orissa (2); Sri Venkatamana Devaru v. The State of Mysore (3); Durgah Committee, Ajmer v. Syed Hussain Ali (4) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion."
4. Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan & ors. AIR 1963 SC 1638. Paragraphs 56 and 59 read as under:-
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91 wp_2890.18.j.doc "56. In Shri Venkataramana Devaru Vs. State of Mysore Venkatarama Aiyar J. observed "that the matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion." It would thus be clear that religious practice to which Art. 25(1) refers and affairs in matters of religion to which Art. 26(b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by Article 25(1) and Art. 26 (b) extends to such practices."
5. Mohammad Ali Khan vs. Special Land Acquisition Officer (1978 SCC OnLine All 948). Paragraphs 8, 9 and 10 of the judgment read as under:-
"8. The contention of the learned counsel is that the petitioner has a right to practice religion in the mosque and hence the same cannot be the subject- matter of acquisition. We are unable to accept the contention as the guarantee under Cl. (1) of Article 25 itself makes the freedom subject to other provisions of part three. Article 31 which provides ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:33 ::: 92 wp_2890.18.j.doc for acquisition of land itself exists in part three. Article 25 will, therefore, be subject to Article 31 and the freedom guaranteed in Article 25 will not be sufficient to take away the right of the State to acquire property if the acquisition is lawfully made.
9. Further, the profession, practice and propagation of religion guaranteed in Article 25 is a personal right which has to be exercised by the individual. It has no nexus with the place or territory where it has to be exercised. A person may go to a particular mosque to offer prayers if it exists, he may go to another mosque if the one in which he offered prayer earlier ceased to exist or he may offer prayers even in his house or elsewhere. Hence, the acquisition of land on which a mosque may exist cannot be held to deprive him of his right to freely practise the religion. A free practice of religion has the idea of practicing it anywhere and not its practice in any particular place. After the acquisition of the property the right to use that property for the purpose of offering prayers may be lost, but that does not ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:33 ::: 93 wp_2890.18.j.doc militate against the guarantee contained in Article 25 of the Constitution.
10.To test the argument about Article 25, we may consider the right of the person to practice his religion in his house or elsewhere. As the prayers can be offered anywhere on earth and a man may be offering prayers in his own house or at some remote place, the right cannot be deemed reasonably to mean that no such place can be acquired. The only reasonable interpretation of Article 25 can be that no law can prohibit the profession, practice or propagation of religion. The law of acquisition cannot be held to be invalid as that relates to land and not the individual's right to profess, practice or propagate religion. As the right to practice religion has no nexus with any particular place that right cannot be deemed infringed by acquisition of any particular piece of land which is used as a mosque."
6. A.S.Narayana Deekshitulu vs. State of Andhra Pradesh {(1996) 9 SCC 548)}. Relevant portion of Paras 88 and 90 read as under:-
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94 wp_2890.18.j.doc "88.The court, therefore, while interpreting Articles 25 and 26 strikes a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest of the community."
"90. ..................All secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process etc. The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:33 ::: 95 wp_2890.18.j.doc integral by the community itself. ............"
7. Javed vs. State of Haryana {(2003) 8 SCC 369}. Paragraphs 44 and 45 read as under:-
"44. The Muslim law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. In our view, the question of the impugned provision of the Haryana Act being violative of Article 25 does not arise. We may have a reference to a few decided cases."
"45. The meaning of religion -- the term as employed in Article 25 and the nature of protection conferred by Article 25 stands settled by the pronouncement of the Constitution Bench decision in M. Ismail Faruqui (Dr) v. Union of India. The ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:33 ::: 96 wp_2890.18.j.doc protection under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article
25."
8. Commissioner of Police vs. Acharya Jagadishwarananda (supra). Paragraph -9 of the judgment reads as under:-
"9.The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion. (See generally the Constitution Bench decisions in Commr., H.R.E. v. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:34 :::
97 wp_2890.18.j.doc Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay and Seshammal v.State of T.N. regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not.) What is meant by "an essential part or practices of a religion" is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:34 ::: 98 wp_2890.18.j.doc fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the "core" of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices."
9. Khursheed Ahmad Khan vs. State of U.P. {(2015) 8 SCC 439}. Relevant portion of Paragraph 13 reads as under:-
"13. ........The right of the State to legislate on questions relating to marriage cannot be disputed. Marriage is undoubtedly a social institution, an institution in which the State is vitally interested. Although there may not be universal recognition of the fact, still a very large volume of opinion in the world today admits that monogamy is a very desirable and praiseworthy institution. If, therefore, the State of Bombay compels Hindus to become monogamists, it is a measure of social ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:34 ::: 99 wp_2890.18.j.doc reform, and if it is a measure of social reform then the State is empowered to legislate with regard to social reform under Article 25(2)(b) notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practise and propagate religion. ........"
10. Haresh M.Jagtiani vs. Union of India {2016 SCC OnLine Bom 2600}. Paragraph 139 of the judgment reads as under:-
"139. This issue was dealt with by the Constitution Bench of the Apex Court in the case of Quareshi-I. In the said case, the challenge was to the total ban on slaughter of cows on BakrI'd day under the Bihar Preservation and Improvement of Animals Act, 1955. The challenge was specifically on the ground of violation of fundamental rights guaranteed under Article 25(1) of the Constitution of India. The Constitution Bench held that the slaughter of cows on BakrI'd was not an essential religious practice for Muslims and, therefore, a total ban on cow's slaughter on the BakrI'd day ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:34 ::: 100 wp_2890.18.j.doc could not be violative of Article 25(1). It was held that there is an option given to sacrifice a goat or bull or a bullock or a camel. The said decision in the case of Quareshi-I has been relied upon in the decision of the Apex Court in the case of Ashutosh Lahiri. It is well settled that what is protected by Articles 25 and 26 is only such religious practice which forms an essential and integral part of the religion. A practice followed may be a religious practice. But, if it is not an essential or integral part of the religion, the same is not protected by Article 25 of the Constitution of India. The alleged economic compulsion will not make the alleged practice an essential part of the religion. It is held in the cases of Ashutosh Lahiri and Quareshi- I that the sacrifice of a cow or its progeny is not an essential part of the muslim religion. Hence, violation of Article 25(1) of the Constitution of India is not at all attracted."
11. Dr. Noorjehan Safia Niaz and anr. vs. State of Maharashtra & Ors. {(2016) SCC OnLine Bom 5394}. Paragraphs 38 and 39 read as under:-
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101 wp_2890.18.j.doc "38. What can be culled out from the aforesaid decisions is that, what constitutes 'an integral or essential part of the religion' is to be determined with reference to is doctrines, practices, tenets, historical background, etc. The religious practice has to constitute the very essence of that religion, and should be such, that if permitted, it will change its fundamental character. It is such permanent essential practices which are protected by the Constitution. It is also evident that immunity under Article 26(b) is provided not only to matters of doctrines or belief, but extends to acts done in furtherance of religion such as rituals, observances, ceremonies, modes of worship, which are considered to be fundamental parts of the religious practices. What is required is, that the such religious practices should be an essential and integral part of it and no other.
39. In the present case, reference must be made to the Qur'an, the fundamental Islamic text, to determine whether a practice is essential to Islam.
Essential part of a religion means the core beliefs upon which a religion is founded and essential ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:34 ::: 102 wp_2890.18.j.doc practice means those practices that are fundamental to follow a religious belief. According to the 'essential functions test', the test to determine whether a part or a practice is essential to the religion, in this case, Islam, to find out whether the nature of religion will change, without that part or practice; and whether the alteration, will change the very essence of Islam and its fundamental character. As is noted in the judgments referred herein above, what is protected by the Constitution are only such permanent essential parts, where the very essence of the religion is altered."
12. Shayara Bano vs. Union of India & ors. {(2017) 9 SCC 1}. Paragraph-26 reads as under:-
"26. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonising different interests is within the powers of the legislature. Of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:34 ::: 103 wp_2890.18.j.doc course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the courts to direct for any legislation."
13. Goa Foundation vs. Konkan Railway Corporation {1994 Mh.L.J.21}.
14. Church of God (Full Gospel) in India vs. K.K.R. Majestic Colony Welfare Association {(2000) 7 SCC 282}. Paragraph-13 reads as under:
"13. In the present case, the contention with regard to the rights under Article 25 or Article 26 of the Constitution which are subject to "public order, morality and health" are not required to be dealt with in detail mainly because as stated earlier no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely affect the rights of others including that of being not disturbed in their activities. We would only ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:35 ::: 104 wp_2890.18.j.doc refer to some observations made by the Constitution Bench of this Court qua rights under Articles 25 and 26 of the Constitution in Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat. After considering the various contentions, the Court observed that: (SCC p. 20, para 30) "No rights in an organized society can be absolute. Enjoyment of one's rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests...."
The Court also observed that: (SCC p. 20, para
31)"A particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have to coexist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole."
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:35 ::: 106 wp_2890.18.j.doc pertain to balancing of rights. In Sakal Papers (P) Ltd.v.Union of India, the Court in the context of freedom of speech and expression, has held that freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. Analysing further, the Court held: (AIR pp. 313-14, para 37) "37. ... It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom."
56. ................The Court further held that where there is a clash of two fundamental rights, namely, the appellant's right to privacy as part of right to life and Ms Y's right to lead a healthy life which is her fundamental right under Article 21, the right which would advance the public morality or public interest, would alone be enforced through the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:35 ::: 107 wp_2890.18.j.doc process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as the courtroom, but have to be sensitive."
37. The Petitioners have objected to the plan of laying down underground tunnel for implementing Mumbai Metro Line -3 (MML-3), 33.5 kms long Metro Rail Project between Colaba - Bandra - SEEPZ. The Petitioners have specifically objected to the plan of boring underground tunnel which passes through 11 Mtrs. Within the premises of H.B. Wadia Atash Behram and Zarthoshti Anjuman Atash Behram (affidavit of Respondent No.4 page 212 Set-I page 146 to 568). The Petitioners seek re-alignment of the said Metro tunnel to that extent. It is the Petitioners' case that ingress process for MML-3 passes through underneath aforesaid two Atash Behram, which violates Petitioners' fundamental rights under Article 14, 21, 25 and 29 of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:35 ::: 108 wp_2890.18.j.doc the Constitution of India. During the course of arguments, the learned Senior Counsel Mr. Seervai submitted that protection is granted to a minority community for preserving its rights as enshrined under Article 25 of the Constitution of India. During the course of arguments, the learned Counsel appearing for the parties have also referred to Articles 25 & 26 of the Constitution of India. It was further submitted on behalf of the Petitioners that there has been non-application of mind while considering the issues raised by the petitioners.
38. It has come on record that the project is estimated to costs approximately Rs. 23,136 crores. Japan International Co- Operation Agency (JICA) would provide Rs. 13,235 crores and the balance funds would be raised by the Central Government of India and Government of Maharashtra. Respondent No.4 claims that MML-3 is designed as more energy cost efficient. According ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:35 ::: 109 wp_2890.18.j.doc to Respondent No.4, some of the benefits of MML-3 project are mentioned below (Ref. Pg. 213 affidavit-in-reply dated 26.6.2018 of Shantaram G. Dalvi):
"3. That the MML-3 is a fully underground, 33.5 kilometers long, rail based mass public rapid transport system running between Colaba-Bandra-SEEPZ. The MML-3 project is being implemented by the Respondent No.4, which is a joint venture between the Central Government and the Government of Maharashtra on a 50:50 sharing basis. The primary object of the Respondent No.4 company is to set up, operate and manage a rail based mass rapid transport system in Mumbai in order to provide the general public with a fast, reliable, convenient, efficient, modern and economical mode of public transport. The project is estimated to cost approximately Rs.23,136 crore with Japan International Co-Operation Agency (JICA) providing a loan assistance of Rs.13,235 crore and the balance funding being raised by the Central Government and the Government of Maharashtra. Being a modern public rapid transport system, the MML-3 is designed to be more energy and cost efficient. It is expected that once the MML-3 project is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:35 :::
110 wp_2890.18.j.doc completed and open to public, the congestion on roads will be reduced. Some of the benefits of the MML-3 project are:
a. Whereas the design capacity of suburban transit trains is 1750 passengers, the trains are overcrowded at peak hours carrying 5000 passengers, MML-3 project is expected to reduce the burden of suburban trains by nearly 15% and provide air-conditioned coaches for commutation.
b. MML-3 running along Colaba-Bandra-SEEPZ corridor, will have 27 stations connecting six financial hubs of the city such as Nariman Point, Bandra-Kurla Complex, Fort, Worli, Lower Parel and Goregaon, 30 educational institutes and 30 recreational facilities in addition to the domestic and international airport terminals.
c. MML-3 is projected to reduce emission of greenhouses gases viz. 6800 tons of Carbon Dioxide in 2021 and 9907 tons by 2041; and 4327 tons of Carbon Monoxide in 2021 and 6304 tons in 2041. Further, the trains operating on MML-3 are engineered to use the energy regenerated during braking for captive use. On ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:35 :::
111 wp_2890.18.j.doc account of the expected reduction in approximately 4.5 lakhs vehicles on road per day, nearly 2.5 lakhs of fuel will be saved per day. Following is a comprehensive table of estimated reduction in pollution and cost in the city of Mumbai.
Description Year 2021 Year 2031 Year 2041 Vehicles Reduction in 4,56,771 5,54,556 6,65,468 Vehicle trips per day Fuel Reduction in fuel 2,43,390 2,95,495 3,54,593 Consumptions Petrol and Diesel in litres per day Cost Avg. savings on a 158.14 191.99 230.39 daily basis due to reduction in number of vehicle trips (in lakhs) Carbon Reduction in 6800 8256 9907 Dioxide pollution emission due to reduction in number of vehicle trips (Tonnes / Year) Thus, it is clear that the MML-3 project is the need of the hour for the city of Mumbai".
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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.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:36 :::
114 wp_2890.18.j.doc (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law -
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.-- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.-- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs. - Subject to public order, morality and health, every religious denomination or any section thereof shall have the right---
(a) to establish and maintain institutions for ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:36 ::: 115 wp_2890.18.j.doc religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law;".
42. Article 25 of the Constitution of India guarantees protection of freedom of conscience and right to freely profess or practise and propagate religion. Clause 2(a) of Article 25 reserves rights of the State to regulate and restrict an economical, financial, political and other secular activities which may be associated with religious practice. In the case of The Commissioner, Hindu Religious Endowments, Madras Vs. Sri. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra) , it was observed that "what Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution of India except when they run counter to public order, health and morality, but ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:36 ::: 116 wp_2890.18.j.doc regulation of activities which are economic, commercial or political in their character though they are associated with religious practices". It was further observed that it extends to these rights to religious practices as a whole subject to the restriction which the Constitution itself has laid down. The Constitution of India has given complete freedom of religion in the matter of deciding the rites and ceremonies which are essential according to the tenets of religion they follow. This right is guaranteed under Article 25(b) of the Constitution of India.
43. The protection guaranteed under Articles 25 and 26 of the Constitution is granted to the acts done in pursuance of the religious ritual and ceremonies, modes of worship, beliefs, practices which are integral or essential part. For determining as to whether such beliefs and practices are integral or essential part of the religion has to be determined with reference to its ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:36 ::: 117 wp_2890.18.j.doc doctrines, practices, tenets, historical background etc. of the given religion. It has been, therefore, observed that what is meant by an essential part or practices of religion is a matter of elucidation. (Ref. Commissioner of Police & Others Vs. Acharya Jagdishwarnanda Avadhuta and another (supra). The essential part of religion means the core beliefs upon which the religion is founded. The essential practices mean those practices that are fundamental to follow a religious belief. One of the tests which has been applied is to see if the taking away of that part or practice could result in a fundamental change in the character of religion or its belief and if it does change, then such a part be treated as an essential and integral part. Belief must be of an essence of that religion. Keeping in view, the aforesaid proposition enunciated by the Courts in the judgments cited (supra), we would consider as to whether the Petitioners have established by leading evidence or placing on record cogent and convincing material based on which, the assertion of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:36 ::: 118 wp_2890.18.j.doc Petitioners' right and protection under Article 25 of the Constitution could sustain.
44. The petitioners have relied upon the affidavits filed in support of their plea that entire Atash Behram premises is consecrated one. It is further contended that Atash Behram is the highest grade of fire i.e. consecrated in a Zoroastrian fire temple. The establishment and consecration of this fire is most elaborate of grades of fire. Atash Behram is composite holo comprising not just consecrated fire and thrown in the sanctum sanctorum but also includes within its definition the entire premises of Atash Behram.
45. In the affidavit filed in support of the petition, it is contended by Vada Dasturji Dr. Kaikhusroo M. Jamasp Asa (ref. Affidavit of Priest) that it is believed that there is a constant requirement of holy fire to be connected with Mother Earth. The ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:36 ::: 119 wp_2890.18.j.doc connection has to be an uninterrupted one with the core and the centre of the earth from which the vibrations and waves emanate. There should be no dynamic motion or movement beneath precincts of the Atash Behram. Therefore, it is said that if a tunnel is bored beneath Atash Behram, the premises would get desecrated.
46. It is also the case of the petitioners that to protect the holy fire from physical and spiritual pollution, the fire is surrounded by spiritual circuits. These circuits act as a barrier and protective ring which are known as karshas. Karshas are formed around consecrated matters and places. It is important to note and which is a matter of great debate, as according to the Priest of the Petitioners, the effect of the karshas extends throughout the entire premises of Atash Behram. The karshas also extend below the ground. Any interference underground would directly breach the effect of the karshas and consequently, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:37 ::: 120 wp_2890.18.j.doc adversely impact the spiritual piety of the holy fire housed in the Atash Behram premises. It is therefore, submitted that the moment the Metro tunnel encroaches underneath the Atash Behram premises, circuits will be breached. This would result in the desecration of the Atash Behram and inturn, would lead to disaster for the entire Zoroastrian community in the world. These two Atash Behram are highly respected all over the world. The proposed construction would be in violation of age old customs, long standing traditions, accepted practices, beliefs, teachings and the tenets prescribed by the religious scriptures of Zoroastrians. The other Priests and Scholars, according to the Petitioners, have also echoed the same views and sentiments in support of the petitioners case and contentions. We have already referred to the affidavits filed by the petitioners in support of their contentions.
47. On behalf of the Respondents, a reference has been ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:37 ::: 121 wp_2890.18.j.doc made to a meeting convened on 9.11.2017 in the presence of Hon'ble the Chief Minister of Maharashtra along with two Priests Vada Dasturji Dr. Firoze M. Kotwal and Vada Dasturji Khurshed Dastoor in a communication dated 16.5.2018 addressed to Dr. Nitin Kareer, Principal Secretary-I, Urban Development Department, Mumbai, wherein it is stated that they do not agree with the contents of the letter dated 10.5.2018 and the so called no objection of the other two Vada Dasturjis in proceeding with the boring of the underground tunnels passing through the Atash Behram premises. It was contended that three of the four high Priests are against the underground tunnels of the MML-3 passing anywhere under the sacred fire temples. The Priest has further stated that since Vada Dasturji Khurshed Dastoor is a Member of the National Minority Commission, Government of India, one could easily assume that the stand taken by him could be pro-Government and thus, be disregarded. In a communication made by Ashiwni Bhide the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:37 ::: 122 wp_2890.18.j.doc Managing Director of MMRCL dated 10.6.2018 mentions that Metro tunnels are at 61 feet deep below the road and the distance between the tunnel of sanctum sanctorum upto Anjuman Atash Behram and H.B.Wadia Atash Behram is 56 and 22 feet respectively. As regards the well water, in the affidavit filed by Vada Dasturji Dr. Firoze M. Kotwal dated 28.5.2018, it is contended that the tunnel process could affect the water tables adversely and there is a distinct possibility of the Atash Behram wells going dry, in which case, none of high rituals of the Zoroastrians faith can be performed in these Atash Behrams. This would be a great religious loss to the community. Yazdi H. Desai, Chairman of the Board of Trustees of the Bombay Parsi Panchayet in the affidavit dated 3.6.2018 states that if the tunnels of the MML-3 are constructed beneath Atash Behram, then it would result in complete desecration of the Atash Behram and would cause grievous hurt to the sentiments of the entire Zoroastrian community not just in India but around the world. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:37 :::
123 wp_2890.18.j.doc Similar view is expressed by Burjor H. Antia, Secretary / Trustee of Board of Trustees of the Zarthoshti Anjuman Atash Behram Trust. It is stated that in case, the tunnels are allowed to be constructed underneath Atash Behrams, then it would result into irreparable loss, damage to religious beliefs and sentiments of the members of the Zoroastrian community. It was suggested that the tunnels could be re-aligned by 11 metres away so that the sanctity of the fire temple is not damaged in any way. The petitioners have also placed on record Resolution passed by the Parsi Panchayets at different places of country in support of the Petitioners' proposals.
48. During the course of submission, the counsel submits that the original texts, tenets were destroyed in the fire and therefore, reliance is placed on the affidavits filed by learned high Priests of the community and the other documents placed on record of this Court.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:37 ::: 125 wp_2890.18.j.doc karshas would be breached if any construction activities are carried out underneath the structure. Document being an article written in a Journal for readership within the Zoroastrian community, it is at best expression of the author's ideas and beliefs. Without reference to some basic source, it cannot be given any weight and relevance according to the counsel. On the petitioners reliance on the documents in the opinion of the high Priests, it was submitted that same cannot be considered as essential religious practice as it does not derive its basis from its religious texts or scriptures. A document was further relied upon by the petitioners to contend that all their concept of vibrations was in existence in Zoroastrian culture. This document, according to the Respondents, does not show that any construction underneath would lead to breach of any spiritual circuit or disrupt connection of fire. ( Affidavit in rejoinder of the petitioners page 413 to 533).
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:38 ::: 127 wp_2890.18.j.doc document shows that karshas are furrows drawn at the surface of the earth to ensure that no pollution impurity or filth enter the place where a ceremony is performed.
52. The learned Senior Counsel Mr. Seervai appearing for the petitioners submitted that there is no need for producing the scriptures, tenets and texts in support of the petitioners' contention that (a) the entire Atash Behram premises are consecrated one, (b) the fire in the karshas extend to vibrations and circuits beneath the surface of earth and that constant connectivity of fire is required to be maintained all throughout,
(c) the well water which is natural source of water, spring water would get diluted or dried up in case the tunnel is constructed underneath the premises.
Articles 14 and 21 of the Constitution read as under :
"14. Equality before law. - The State shall not deny to any person equality before the law or the equal protection of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:38 ::: 128 wp_2890.18.j.doc laws within the territory of India.
21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law."
53. The petitioners have to establish that by constructing Metro tunnel underneath the Atash Behram premises, their right to practice religion is curtailed to profess, practise and propagate religion or in any way hampered or curtailed or gets damaged. The contesting Respondents have not raised any objection to Petitioners' ceremonies carried out in the Atash Behram premises. The Respondents have reservations and objections to the assertion of the petitioners that the entire Atash Behram premises is consecrated one.
54. Taking into consideration the material placed on record, documents the petitioners' assertion made in the petition, affidavits, rejoinders, affidavits filed by the high ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:38 ::: 129 wp_2890.18.j.doc Priests, article published in the Journals, Books, we are not fully convinced to hold that the entire subject Atash Behram premises are consecrated one.
55. Assuming that Atash Behram premises are consecrated one, the petitioners could not establish that by constructing underneath tunnel down below 60 feet of the Atash Behram premises, would desecrate the Atash Behram, and due to which existence of religion itself would get endangered.
56. It was submitted that Respondent No.4 has already agreed to move 3.5 metres away from the original alignment.
57. We have carefully gone through the various charts, plans, photographs to appreciate the case of the Petitioners. We are not persuaded by the Petitioners to hold that in constructing the tunnel underneath the Atash Behram premises, protection ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:38 ::: 130 wp_2890.18.j.doc guaranteed under Articles 25 and 26 of the Constitution of India would get breached.
58. After the arguments were concluded, at the request of Counsel appearing for the parties, the matter was adjourned as the Counsel for the petitioners submitted that the Apex Court has delivered judgment in the case of Indian Young Lawyers Association Vs. State of Kerala Vs. State of Kerala and others in W.P. (C ) No. 373 of 2006 ( Sabarimala Temple Judgment) and the Petitioners would like to refer this judgment of Apex Court. In fairness, we permitted the petitioners to place the judgment and accordingly the case was adjourned for only purpose of hearing parties for citing this judgment and for offering their views. We have perused the judgment delivered by the 5-Judge Bench of the Apex Court in W.P. No. ( C) 373 of 2006 by the Apex Court. We may refer to some of the observations of the Apex Court below.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:38 ::: 132 wp_2890.18.j.doc Rules, framed in pursuance of the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, is a clear violation of the right of such women to practise their religious belief which, in consequence, makes their fundamental right under Article 25(1) a dead letter. It is clear as crystal that as long as the devotees, irrespective of their gender and / or age group, seeking entry to a temple of any caste are Hindus, it is their legal right to enter into a temple and offer prayers. The women, in the case at hand, are also Hindus and so, there is neither any viable nor any legal limitation on their right to enter into the Sabarimala Temple as devotees of Lord Ayyappa and offer their prayers to the deity.
144. In view of our aforesaid analysis, we record our considerations in seriatim:
(i) In view of the law laid down by this Court in Shirur Mutt (supra) and S.P. Mittal (supra), the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 ::: 133 wp_2890.18.j.doc devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination."
Paragraph 20, 21.6 of the Judgment delivered by Hon'ble Mr. Justice R.F. Nariman (concurring) reads under:
"20. In Adi Saiva Sivachariyargal Nala Sangam and Ors. Vs. Government of Tamil Nadu and Anr., (2016) 2 SCC 725, ("Adi Saiva Sivachariyargal Nala Sangam"), this Court was concerned with a Government Order issued by the Government of Tamil Nadu, which stated that any person who is a Hindu and possesses the requisite qualification and training, can be appointed as an Archaka in Hindu temples. The Court referred to Article 16(5) of the Constitution, stating that the exception carved out of the equality principle would cover an office of the temple, which also requires performance of religious functions. Therefore, an Archaka may, by law, be a person professing a particular religion or belonging to a particular denomination. The Court went on to hold that although what constitutes essential religious practice must be decided with reference to what the religious community itself says, yet, the ultimate constitutional arbiter of what constitutes essential ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 ::: 134 wp_2890.18.j.doc religious practice must be the Court, which is a matter of constitutional necessity. The Court went on to state that constitutional legitimacy, as decided by the Courts, must supersede all religious beliefs and practices, and clarified that "complete autonomy", as contemplated by Shirur Mutt (supra), of a denomination to decide what constitutes essential religious practice must be viewed in the context of the limited role of the State in matters relating to religious freedom as envisaged by Articles 25 and 26 of the Constitution, and not of Courts as the arbiter of constitutional rights and principles.
[EMPHASIS SUPPLIED] 21.6 It is only the essential part of religion, as distinguished from secular activities, that is the subject matter of the fundamental right. Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered as essential parts of religion.
Matters that are essential to religious faith and/or belief are to be judged on evidence before a Court of law by what the community professing the religion itself has to say as to the essentiality of such belief. One test that has been evolved would be to remove the particular belief stated to be an essential ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 ::: 135 wp_2890.18.j.doc belief from the religion - would the religion remain the same or would it be altered? Equally, if different groups of a religious community speak with different voices on the essentiality aspect before the Court, the Court is then to decide as to whether such matter is or is not essential. Religious activities may also be mixed up with secular activities, in which case the dominant nature of the activity test is to be applied. The Court should take a common sense view and be actuated by considerations of practical necessity.
[EMPHASIS SUPPLIED] 21.11. Contrasted with the fundamental right in Article 25(1) is the fundamental right granted by Article 26. This fundamental right is not granted to individuals but to religious denominations or sections thereof. A religious denomination or section thereof is to be determined on the basis of persons having a common faith, a common organization, and designated by a distinct name as a denomination or section thereof. Believers of a particular religion are to be distinguished from denominational worshipers. Thus, Hindu believers of the Shaivite and Vaishnavite form of worship are not denominational worshipers but part of the general Hindu religious form of worship."::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 :::
136 wp_2890.18.j.doc Paragraphs 44, 46, 47, 48 and 49 of the judgment delivered by Hon'ble Dr. Justice D.Y. Chandrachud read as under:
"44. ............ The essentiality test came to be linked to the "fundamental character" of the religion. If the abrogation of a practice does not change the fundamental nature of the religion, the practice itself is not essential.
46. ........ While the majority based its conclusion on an examination of the substantive doctrines of Islam and the theological sanctity of triple talaq, the minority relied on the widespread practice of triple talaq to determine its essentiality. The majority and minority concurred, however, that the belief of a religious denomination claiming a particular practice to be essential must be taken into consideration in the determination of the essentiality of that practice.
47. .......... While the views of a religious denomination are to be taken into consideration in determining whether a practice is essential, those views are not determinative of its essentiality. The Court has assumed a central role ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 :::
137 wp_2890.18.j.doc in determining what is or is not essential to religious belief. Intrinsic to the role which the Court has carved out, it has sought to distinguish between what is religious and what is a secular practice, even if it is associated with a religious activity. Going further, the Court has enquired into whether a practice is essential to religion. Essentiality of the practice would, as the Court as held depend on whether the fundamental character of a religion would be altered, if it were not observed. Above all, there is an emphasis on constitutional legitimacy, which underscores need to preserve the basic constitutional values associated with the dignity of the individual. The ephemeral distinction between religion and superstition becomes more coherent in terms of the need to preserve fundamental constitutional values associated with human liberty.
48. ..... That a practice claimed to be essential has been carried out on since time immemorial or is grounded in religious texts, does not lend to it constitutional protection unless it passes the test of essentiality.
49. ..... It is the duty of the courts to ensure that what is protected is in conformity with fundamental ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 ::: 138 wp_2890.18.j.doc constitutional values and guarantees and accords with constitutional morality. While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together, these three values combine to define a constitutional order of priorities. Practices or beliefs which detract from these foundational values cannot claim legitimacy. In Government of NCT of Delhi Vs. Union of India, (2018) 8 SCALE 72, one of us (Chandrachud, J.) observed the importance of constitutional morality as a governing ideal:
"Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution, but provides an "enabling framework that allows a society the possibilities of self- renewal". It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly."
Our Constitution places the individual at the heart of the discourse on rights. In a constitutional order characterized by the Rule of Law, the constitutional ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 ::: 139 wp_2890.18.j.doc commitment to egalitarianism and the dignity of every individual enjoins upon the Court a duty to resolve the inherent tensions between the constitutional guarantee of religious freedom afforded to religious denominations and constitutional guarantees of dignity and equality afforded to individuals. There are a multiplicity of intersecting constitutional values and interests involved in determining the essentiality of religious practices. In order to achieve a balance between competing rights and interests, the test of essentiality is infused with these necessary limitations.
108. In Sastri Yagnapurushadji, Chief Justice Gajendragadkar propounded a view of Hinduism which in doctrinal terms segregates it from practices which could be isolated from a rational view of religion. The result which followed was that while at a formal level, the Court continued to adopt a view which placed credence on the role of the community in deciding what constitutes a part of its religion, there is a super imposed adjudicatory role of the Court which would determine as to whether something is essential or inessential to religion. In the case of the Avadhuta II, the assumption of this role by the Court came to the forefront in allowing it to reject a ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 ::: 140 wp_2890.18.j.doc practice as not being essential though it had been prescribed in a religious text by the founder of the sect.
....... Protecting that autonomy enhances the liberal values of the Constitution. By entering upon doctrinal issues of what does or does not constitute an essential part of religion, the Court has, as a necessary consequence, been required to adopt a religious mantle. The Court would determine as to whether a practice is or is not an essential part of religion. This has enabled the Court to adopt a reformist vision of religion even though it may conflict with the views held by the religion and by those who practice and profess the faith. The competence of the Court to do so and the legitimacy of the assumption of that role may be questionable. The Court discharges a constitutional (as distinct from an ecclesiastical) role in adjudication. Adjudicating on what does or does not form an essential part of religion blurs the distinction between the religious- secular divide and the essential / inessential approach. The former has a textual origin in Article 25(2)
(a). The latter is a judicial creation".
60. The learned Senior Counsel Mr. Seervai submitted that the structural safety of the Atash Behrams would be ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:39 ::: 141 wp_2890.18.j.doc endangered in case the tunnels are constructed underneath. The learned Counsel referred to other structures in the vicinity which developed cracks due to on going Metro work. Similarly, other examples are given in respect of old structures around which the MML-3 work is going on. According to the the learned counsel, vibrations emanating due to boring of tunnel by the Tunnel Boring Machine (TBM) would severely cause damage to the 188 year old Atash Behram structure. On this ground, the counsel for the petitioners submitted that it is not technically feasible to allow the boring of underground tunnel. In case of damage to the structure, the community nationally and internationally would be severely prejudiced and pained. It is submitted that the Metro Line is required to be realigned. In respect of the VJTI Report, it is submitted that the said Report is not based on essential and required data based on spot inspection and technical assessment. The VJTI Report, according to the Counsel, is based on Visual inspection and some documentary ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:40 ::: 142 wp_2890.18.j.doc data collected. The Counsel therefore submitted that the Report is not convincing one in deciding as to whether there is technical feasibility to construct underground tunnel.
61. Learned Senior Counsel for Respondent No.4 placed reliance on the conclusions drawn by 5-Member Team appointed by the High Court pursuant to the orders dated 25.7.2018 and 6.8.2018 and the VJTI Report dated 9.8.2018, which, according to the Counsel, is in favour of Respondent No.4. The Court may not be in a position to assess the technical feasibility in the light of the Report of 5-Member Team of VJTI and the conclusions drawn by 5-Member Team of VJTI which are placed on record by Respondent No.4. The learned Senior Counsel submitted that the project is managed by Experts in the field of national and international repute and they have already mentioned the precautions which the Experts would be taking in operating TBM.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:40 ::: 144 wp_2890.18.j.doc Committee list. Upline tunneling passes under the structure (the Centre Line of the tunnel - 6.68 in diameter running along the boundary wall). The VJTI Team along with Representatives of the Trustees of Anjuman Atash Behram carried out external visual inspection on 28.7.2018 and 4.8.2018. Dr. R.D. Daruwala, Professor and Head, Electrical Engineering Department, VJTI, practising Zoroastrian faith, took photographs of the internal surfaces of Anjuman Atash Behram. The Report described general impression of building including visual architectural construction on the condition of the structure. MMRCL carried out geotechnical investigations to identify the different layers of strata, quality / grade of soil / rock in each layer, depth of water table and other geotechnical parameters. Layer I, Layer II and Layer III of below ground level were also described in the Report.
64. On Vibration Analysis, the VJTI Report states that tunneling operation is being carried out using TBM. In addition ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:40 ::: 145 wp_2890.18.j.doc to this, MMRCL proposed to use controlled blasting as one of the alternate method for Kalbadevi station construction. Controlled blasting causes vibrations that propagates through the soil / rock medium to the structures on ground. They recommended the Peak Particle Velocity at ground surface shall not exceed 2.54 mm / sec (As per AASHTO Guidelines) at both Behrams, due to tunneling underneath or any other construction activity. The Station consists of three tunnels, two platform tunnels plus one central NATM tunnel and two cut and cover boxes on either side of the Station.
65. The Report states that MMRCL proposed to use controlled blasting as one of the alternative methods for Kalbadevi station construction. The maximum Peak Particle Velocity, the Wadiaji Atash Behram structure is going to experience 1.956 mm / sec. Analysis is also performed to establish safe peak particle velocity for Wadiaji Atash Behram ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:40 ::: 146 wp_2890.18.j.doc structure. In addition to this, based on vibration level during construction of CST Metro station and during controlled blasting for construction of Shaft-Pali ground Metro project at Marol, Mumbai, it is predicted that the vibrations induced due to Kalbadevi Station construction on Wadiaji Behram Structure shall be within the permissible limits i.e. (PPV) will not exceed 2.54 mm / sec. Geological investigation shows that the geological strata at Kalbadevi metro station is similar to that of CST metro station.
66. On monitoring water levels in the wells and Piezometers, the Report states that total four wells are present in the premises of each of Atash Behram structure and they are monitored on regular basis by MMRCL for water level. The water level data from 17.5.2018 till 30.7.2018 shows no significant variation in water level during and after metro tunneling work.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:40 ::: 148 wp_2890.18.j.doc structures.
2. The proposed tunneling work (using TBM) for Metro line 3, passing under Wadiaji and Anjuman Atash Behram buildings, shall not have adverse effect on level and quality of water in the wells within the premises of both Atash Behrams.
Effect of Operation of Metro Rail (Line 3) on safety of both Atash Behram buildings.
1. Operation of the Metro Rail, through the proposed tunnels passing under Wadiaji and Anjuman Atash Behram buildings shall not have adverse effect on the structures.
Effect of Proposed Construction of Kalbadevi Station on safety of Wadiji Atash Behram building
1. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atash Behram building shall not have adverse effect on this structure.
2. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atash Behram building shall not have averse effect on level and quality of water in the wells within the premises of Wadiaji Atash Behram. Recommendations ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:41 ::: 149 wp_2890.18.j.doc In order to achieve additional safety, following measures are recommended:
1. Excavation for cut and over at Kalbadevi station near the corner of Wadiaji Atash Behram shall be carried out by drilling line holes upto bottom for the plan area of 3 x3 mtrs. The further excavation in remaining area shall be carried out by mechanical means or control blasting.
The perforation (drilling holes) by line drilling will further reduce to vibration on Atash Behram buildings.
2. Both the Atash Behram structures should be closely monitored for settlement, vibration, tilt and change in crack width before, during and after tunneling and construction of proposed Kalbadevi Station. Vibration monitoring shall be carried on 24/7 basis during construction works.
3. Wells in the premises of both the Atash Behrams should be closely monitored for water level and water quality".
[EMPHASIS SUPPLIED]
68. The VJTI therefore, recommended that excavation for cut and cover shall be carried out by drilling line, holes up to bottom for the planned areas 3 x 3 mtrs. and other excavation in ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:41 ::: 150 wp_2890.18.j.doc remaining areas shall be carried out by mechanical means or controlled blasting. The perforation (drilling holes) by line drilling will further reduce vibration and monitoring shall be carried out by 24x7 by controlled blasting.
69. There are total 17 Annexures on various aspects including the technical ones. The Report has recommended that controlled blasting technique needs to be adopted and vibration monitoring shall be carried out on 24 x 7 basis.
70. We are are not persuaded to hold that the use of TBM underneath the premises would damage the structure. Certainly Contractors, Technicians and Experts shall have to take abundant precaution while using TBM and the work shall be monitored 24 x 7. In case of any crack damages noticed, then Technicians need to resort to corrective measures as per the Expert's advice at the relevant time.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:41 ::: 152 wp_2890.18.j.doc notice of the Court is that the subject Metro line is referred to as upline. The metro tunnel on the other side has already been constructed and the subject metro tunnel passing through Atash Behram is going upwards, therefore, it was submitted that now the realignment is not possible as the same will disturb construction of Kalbadevi station and it will further disturb the alignment between the two Metro lines going upward and downwards. We find substance in the submissions advanced by learned Senior Counsel appearing for Respondent No.4.
73. It has also been brought to our notice that petitioners did not raise any objection when the contesting Respondent No.4 called for suggestions and objections and fixed date for public hearing. The petitioners had an opportunity to place their case before the authorities concerned at the relevant time but they failed to do so.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:41 ::: 154 wp_2890.18.j.doc growing needs of the city and considering the safety of its people, it has been decided to implement the construction of Metro in Mumbai.
76. Mumbai is a megacity and a commercial hub known nationally and internationally. Due to rapid growing up organizations, cities in the Country have become more populous. Mumbai is no exception. In fact, it has attracted a huge investments in infrastructure, trade and commerce. People from all walks of life in the Country, settled down in Mumbai either in search of employment or to pursue their profession, trade or business. Mumbai is a city of Islands. Mumbai has its own limitations in catering to the every growing pressure and one of the biggest challenge is transport.
77. The residents of Mumbai city deserve a safe and convenient transport system. In fact, such system ought to have ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:41 ::: 155 wp_2890.18.j.doc been placed long back.
78. The realignment of project brought before us shows that it is passing through many congested areas of Mumbai and its suburbs. It is a challenging job for the experts to execute this project. It becomes from sensitive when it comes to protect monuments, heritage buildings and old structures. With the expertise in the field, this task too needs to be achieved by the experts. In the process, some inconvenience is very likely to be caused.
79. On the other hand, the Respondents have shown concern with delaying execution of the project which affects the public interest. It adversely affects the contractual rights of the parties and even the financial agencies. It causes escalation of cost too which generates further litigations.
80. The learned Senior Counsel Mr. Seervai appearing for ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 ::: 156 wp_2890.18.j.doc the petitioners vehemently submitted that the technical reports submitted so far, need to be discarded and the reports which the learned Senior Counsel Mr. Seervai was relying upon, needs to be accepted. In view of the material placed on record, we are not persuaded to accept the said proposition and / or substitute our opinion in the matters which are of extremely technical nature and relate to execution of a project based on contracts arrived at between the parties.
81. The learned Senior Counsel Mr. Devitre appearing for the Trust submitted that the down tunneling by drilling is going on since 11.7.2018 and on 14.7.2018 cracks were noticed to the surrounding buildings. A reference was made to affidavit of Mr. Jamshed Noshir Sukhadwalla filed on 4.8.2018. In para 2 of the affidavit, Mr. Jamshed Sukhadwalla states that "Wadia building which is situated right next to the H.B. Wadiaji Atash Behram and which is also 188 years old like the H.B. Wadia Atash ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 ::: 157 wp_2890.18.j.doc Behram, developed huge cracks on 11.7.2018. The Mumbai Building Repair and Reconstruction Board which is a MHADA Unit has by its letter dated 21.7.2018 observed that rear portion kitchen area of the building is in a dilapidated condition, the I- Section beam supporting the rear portion kitchen area of the structure is distressed and may break at any moment. Further, the wall portion joining the front portion and the rear portion kitchen area has developed a separation crack making it more dangerous. The petitioners state that to avoid any untoward incident and loss of property / life, permission was granted for demolition of rear portion kitchen area of the said structure. The Report of Grace Consultants dated 23.7.2018 records that the Wadia building is still in precarious state after propping up and covering of the separation crack. It further states that Trust needs to secure an area statement and a re-erection report from the MHADA authorities. A copy of the Report together with the photographs of the cracks is also annexed to the affidavit. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 ::: 159 wp_2890.18.j.doc Wadiaji Atash Behram. Reference is also made to a communication made by Minu J. Modi addressed to the Trust of H.D. Wadia fire temple Trust dated 25.7.2018 which is report of Architect - Grace Consultants. The learned counsel Mr. Divetre further referred to the affidavit filed on behalf of Respondent Nos. 10 to 12. In the affidavit, Mr. Hosi Daly Dastur- Respondent No.12 states in paragraphs 3 and 4 as under:
"3. On 11th July, 2018, one of the tenants informed the secretary of the Trust that the first Wadia building in the Wadia Compound along J.S.S. road had developed a big crack. Thereafter, the secretary of the Trust telephonically informed me of the developments and also vide his email dated 11th July, 2018 placed the events of the day before the Trustees. A copy of the said email dated 11th July, 2018 is annexed hereto as Exhibit-1. On the said date, M/s. Grace Consultants, Architects were also requested to survey the damage, determine the potential threat and suggest remedial measures, if any. I say that both the municipal authorities and MHADA authorities were informed of the developments and sent ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 :::
160 wp_2890.18.j.doc their engineers on 11th and 12th July, 2018 to inspect the damage to the said building and report the matter to their seniors to take further action. In fact, a complaint was registered with the Municipal Corporation of Greater Mumbai ("MCGM") on 11th July, 2018 by the Trust in connection with the crack which had appeared on the building and a complaint no. 201805701 was provided by MCGM in this regard. I say that the crack appeared on 11th July, 2018 and there was no such crack prior to 11 th July, 2018.
4. I say that on 11th July, 2018 when the municipal authorities and MHADA authorities visited the Wadia Compound, they discussed with M/s. Grace Consultants the method of propping up the building and agreed to M/s. Grace Consultant's proposal of erecting a portal frame using heavy steels I sections. I say that the work of propping up continued the entire night and the tilt in the building was stabilized. Other remedial measures were also taken, all of which are enumerated in the report of M/s. Grace Consultants dated 25 th July, 2018. The material inter alia required for propping up the said building was supplied by Master Home Makers. Copy of the bill Master Home Makers dated 17 th July, 2018 is annexed hereto as Exhibit-2. The report of M/s. Grace ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 ::: 161 wp_2890.18.j.doc Consultants dated 25th July, 2018 in this regard has been placed on record by the Petitioners in their Affidavit dated 4th August, 2018 which was served on my Advocates on the same date".
83. The Counsel further referred to VJTI Report which is at page 584 of the paper book. Paragraph 5.0 of the Report states as under:
"5.0 External inspection of other buildings and roads in the vicinity of Atash Behram structures Road surface in and around the alignment between CST Metro station to proposed Kalbadevi Metro station has been inspected for settlement, undulations and caving. No adverse effect of tunneling activity has been observed. Metro tunnel (Down line) has also crossed the buildings which are classified (BCS conducted by MMRCL) under severe and including few heritage structures. Building structures within the zone of influence of Metro construction work are being monitored by MMRCL for change in crack-width, settlement, tilt and vibration. The data provided from 07.05.2018 to 30.07.2018 indicates that these parameters are within the permissible design ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 ::: 162 wp_2890.18.j.doc limits prescribed by MMRCL (Annexure IV). VJTI Team also carried out inspection of few structures externally and has not observed any adverse effect of underneath tunneling activity.
Wadia trust building situated on the North side of Wadiaji Atish Behram and abutting JSS Road shows separation between two parts of the building. Prima facie, it appears that these two portions has been constructed on different period of time and apparently there is no structural connectivity between these two parts. Since this gap is not being monitored, the widening of gap cannot be commented whether it is due to tunneling or any other activities."
84. Further reference was made to affidavit filed by Respondent No.4 by the learned counsel with specific paragraphs 19, 21, 22 and 23 which read as under: (Ref. Additional Affidavit dated 16.8.18 pg.877-878):
"19. With reference to the contention regarding the cracks developed on Wadia Building, I submit that such damage has no relation to the construction of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 ::: 163 wp_2890.18.j.doc Down Line Tunnel. The alleged separation crack referred to in the Affidavit is located at a distance of 55.54 metres (182 feet) from the centre line of the down line tunnel. Respondent No.4 has installed various instruments like Building Settlement Markers, Pavement Settlement Markers, Bi-Reflex Targets, Crack Metres and Tilt Plates in adjacent buildings such as Khan House, Dharmashee Building, Singapuri Building, Chugmal Building, Pokhraj Building, Rajshilla Building, Kapadia Chambers, Maheshwari Bhawan and Karim Manzil on the Down Line side and Wadiaji Atash Behram and Wadia Building (Residential), Subodh Darshan A and Wing and Gurudev Complex on the Up line side to observe any settlement or deflection. However, the installation of instruments in Wadiaji Atash Behram and Wadia Building (Residential) was limited to the outer boundaries of the structures as permissions were not granted for installation of instruments inside the structures. The data recorded by Respondent No.4, four times a day, did not show any deflection or settlement. Furthermore, there are several structures between the Down Line Tunnel and the Wadia ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:42 ::: 164 wp_2890.18.j.doc Building which are closer to the down line tunnel than the subject building and none of these structures showed any sign of distress during the construction. Furthermore, the alleged crack is shown to be on Western Side of the structure whereas the Down Line Tunnel passes through the Eastern Side of the structure.
21. I further submit that the Wadia Building has been in dilapidated condition for a long time and several notices were earlier issued by the Mumbai Building Repair and Reconstruction Board of MHADA ("MBRR") calling upon the occupants of the said building to vacate the premises as the building is in a dilapidated condition and is likely to collapse at any point of time. The same is evident from the letter dated 21st July, 2015 addressed by MBRR to the occupants / tenants of Wadia Building. Furthermore, the letter dated 12th July, 2018 addressed by MBRR to the Secretary of Wadia Fire Temple records that the steel structure of Wadia Building is "totally corroded".
Hereto annexed and marked as Annexure "4" is a copy of the letter dated 21st July, 2015 addressed by ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:43 ::: 165 wp_2890.18.j.doc MBRR to the tenants / occupants of Wadia Building. Hereto annexed and marked as Annexure "5" is a copy of the letter dated 12th July, 2015 addressed by MBRR to the Secretary of Wadia Fire Temple. It appears that in spite of such notices, the occupants have not vacated, nor the Trustees of the Concerned Agyari has taken steps to rectify the damages.
22. I further state that undertaking repair work by the MBRR is a detailed process which involves several stages, including:
a. Identification of repairs
b. Inspection of the buildings
c. Issue notice to landlord
d. Intimation to Occupants
e. Propping the building and issuance of vacation
notice.
Considering that MBRR had issued notices on 2015, it can be stated that the Wadia Building was in a dilapidated condition since a long time.
23. I say that the aforementioned facts show that Wadia Building was in dilapidated condition since ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:43 ::: 166 wp_2890.18.j.doc long and any alleged crack developed on such structure on 11th July, 2018 cannot be attributed to the construction work carried out for the Down Line Tunnel which is at a 55.54 meter (182 feet).
Furthermore, the structural condition of H.B. Wadiaji Atash Behram is far better than Wadia Building. Thus, the damage to Wadia Building is not relevant for the purpose of assessing the impact of metro work on the structural health of H.B. Wadiaji Atash Behram". (Ref.pg 877 to 879)
85. The technical aspects highlighted by learned counsel Mr. Divetre has been considered by the Experts and under Report of VJTI. The contesting respondents have already disclosed their stand that they would adopt method of controlled blasting with restricted vibrations so that it would not endanger structure and would take all steps expected of it. This monitoring will be done 24 x 7 according to the Respondents. Though both sides have conflicting claims on the measures to be adopted for protecting the age old structures of two Atash ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:43 ::: 167 wp_2890.18.j.doc Behrams, we have carefully examined the precautionary measures which the contesting Respondents have decided to observe while TBM is put into operation during the boring of the underground tunnel passing through the premises. We are therefore, not persuaded to adopt a contrary view other than the one expressed by the Experts and Technicians which is placed on record by the Respondents.
86. The learned Senior Counsel for Respondent No.4 has referred to the views expressed by the Apex Court in the case of N. D. Jayal and another Vs. Union of India reported in (2004) 9 SCC 362. Paragraphs 22 and 23 in the said judgment read as under:
"22. Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens' Welfare Forum V. Union of India, (1996) 5 SCC 647 and in M.C. Mehta Vs. Union of India, (2002) 4 SCC 356, it was observed that the balance between environmental ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:43 ::: 168 wp_2890.18.j.doc protection and developmental activities could only be maintained by strictly following the principle of "sustainable development". This is a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environment related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development without which life of the coming generations will be in jeopardy.
23. In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right. Maybe, in a different context, the right to development is also declared as a component of Article 21 in cases like Somatha Vs. State of A.P., (1997) 8 SCC 191 and in Madhu Kishwar Vs. State of Bihar, (1996) 5 SCC 125.
87. The learned Senior Counsel for Respondent No.4 has ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:43 ::: 169 wp_2890.18.j.doc referred to the affidavit-in-rejoinder filed by Shantaram Ganpat Dalvi dated 26.6.2018 on behalf of Respondent No.4. Paragraphs 6 and 7 of the said affidavit-in-rejoinder reads as under (Ref. Pg.215 & 216):
"Compromise to the Structural Integrity of the Atash Behrams:
6. That the petitioners have contended that there is "a distinct possibility that there will be physical damage to the structure and edifice" of the Atash Behrams. It has been averred by the petitioners that a certain building named Jer Mahal Annexe suffered significant damage including collapsing of ceiling walls as a result of the construction of tunnels. It is stated that at the time of incident referred to by the petitioner, the construction was being undertaken nearly 116 meters away from the location of the said building. Further, the construction work of the tunnel was on hold for three days prior to the said incident for routine maintenance work. Considering the fact that the vibrations from the operation of the Tunnel Boring Machine (hereinafter referred to as "TBM") has had no effect upon other buildings of the area, it ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 ::: 170 wp_2890.18.j.doc cannot be said that the damage caused to the Jer Mahal annexe building has been caused by the construction undertaken by Respondent No.4. It is submitted that the petitioners have relied upon premature reporting of the incident in certain newspapers to conclude that the operations of Respondent No.4 are alone responsible for the incident. It is submitted that the petitioners have failed to establish any casualty between the damage to the Jer Mahal annex building and the construction of MML-3.
Copy of the incident Report of Jer Mahal Annex Building submitted by the Project Management Consultants to Respondent no.4 is annexed hereto and marked as Annexure-1.
7. That the construction of the MML-3 is being carried out by the Respondent No.4 after exercising extensive due diligence. A detailed protocol has been laid down for the protection of heritage buildings such as the Atash Behrams and other buildings from the impacts of tunneling and excavation works. The subject buildings are assessed and categorized based on the structural health of the building. In cases where the health of the structure is precarious, protection and mitigation measures are undertaken and continuous monitoring is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 ::: 171 wp_2890.18.j.doc undertaken during construction. A copy of the report titled "Approach of Protection of Heritage (and other) Buildings from Impacts of Tunneling and Excavation Works" is attached hereto and marked as Annexure-2. That as per the Building condition Survey Report (hereinafter referred to as "BCS report"), the Anjuman Atash Behram is classified as "slight" (i.e. Building with Moderate non-structural cracks, severe non-structural cracks and presence of water seepage.) Further the BCS report for Wadiaji Atash Behram classifies it as 'Moderate' building category, (i.e. Building with minor, sporadic spalled concrete and presence of water seepage). It is stated that although 280 meters of tunneling work has been undertaken in the Kalbadevi area by Respondent No.4 underneath buildings categorized as "Severe", (i.e. Buildings with Major extensive spalled concrete, bulging of structural & load bearing elements, exposure of reinforcement bars of columns and beams and presence of water seepage), and "Very Severe" (i.e. Building with Deteriorated structural / load bearing elements, heavily exposed reinforcement in columns & beams of framed structures, deflected / tilted and propped structural elements and water leakages) as per the BCS report, no data recording settlements, tilt or change in the crack ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 ::: 172 wp_2890.18.j.doc width with respect to such buildings have been recorded. Further, the same construction techniques have been employed in various areas of Mumbai city without any adverse incidents. It is also pertinent to note that in spite of repeated requests, Respondent No. 10 to 12, being Trustees of the Hormasji Bomanji Wadia Fire Temple Charity Fund, have restrained Respondent No.4 from undertaking Building condition Survey through a Parsi contractor or installing monitoring instruments within the premises. It is in the interest of all concerned the such surveys, assessments and scientific monitoring be carried out. Such exercises would present the likelihood of any prospective damage. In light of the facts stated hereinabove, it is apparent that the petitioners have relied on mere speculations and not actual facts to state that the construction of MML-3 threatens the structural integrity of the Atash Behrams. This contention has been dealt with more elaborately below".
88. Incident Report of Jer Mahal annex building brings out the facts under caption "occurrence of incident and tunneling works" in the said affidavit. According to the learned Counsel, the TBM was stopped on 19.4.2018 and Jer Mahal annex incident ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 ::: 173 wp_2890.18.j.doc has taken place on 21.4.2018 at 6.00 a.m. At that time, TBM-1 was stopped for the down time maintenance. At that point of time, it was 116 mtrs. from Jer Mahal annex building. It is further submitted that TBM-2 was stopped on 2.4.2018 and at the time of Jer Mahal annex incident, TBM-2 was stopped for the down time maintenance. It was 385 mtrs. away from Jer Mahal annex and submission of the learned counsel for the petitioners is making confusion in the affidavit dated 11.7.2018. The confusion created by the petitioners in projecting as if it was upto Jer Mahal annex building. Jer Mahal annex building was categorized as "severe", whereas the nearby Atash Behram is classified as "moderate" by Respondent No.4 and "slight" by VJTI Team. Reliance was placed on building condition report prepared by MMRC's general consultants. The survey report papers refer to set out approach proposed to be adopted in MML- 3 to ensure that the building within the influence zone of MML-3 and tunnel works are not adversely affected by the works, the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 ::: 174 wp_2890.18.j.doc relevant contract condition within the 7 awarded underground tunnel and station contracts ensuring that the process is followed and review of the status of the process is made. (pg. 234 Part-II). Para 2, 2.1 and 2.3 of the Report read as under:
"2. The process 2.1. Assessment: Existing Building Surveys are to be undertaken to determine the foundation type, structural form and condition of each building which are used in conjunction with the buildings use and importance to determine the Building Damage Classification which in turn sets the limits on impacts that can be imposed. Typically the influence zone is being taken as 50 mtr. Each side of the MML-3 centreline Heritage buildings would be placed in the most severe Building Damage Classification with Risk Category Zero and damage Description of Negligible. For such a category the building damage is limited to hairline cracks and tensile strains less than 0.05%. 2.3 Design of Mitigation Measures.-
Where it becomes apparent that the impacts cannot be constrained to limits that will prevent building damage mitigation measures will be developed to prevent excessive building damage.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 :::
175 wp_2890.18.j.doc Examples are:
a. Noise and vibrations barriers.
b. Water recharge
c. Propping of structures in poor condition.
d. Temporary removal of loose architectural fittings.
Where the existing building condition is very poor temporary vacation of buildings may also be considered and in extreme circumstances controlled demolition of buildings may be required.
2.4 Monitoring-
Monitoring will be used to ensure that actual impacts of excavation do not exceed the set limits and if necessary used as alerts for the need to implement more reactive mitigation measures or revised excavation measures. Monitoring devices to be installed include;
a. Ground settlement markers.
b. Ground inclinometers.
c. Ground water measurement - static and piezo
metric
d. Building settlement markers.
e. Building tilt meters.
f. Building vibration monitors.
The monitoring devices will be installed at least one month before works commence and should be monitored ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 ::: 176 wp_2890.18.j.doc daily until at last 6 months after works are complete. During the period when works are immediately adjacent to a building the monitoring should be done more frequently and consideration given to real time monitoring".
In table 3-1 (Ref. Pg.238), the building damage classification is described, which reads as under:
Table 3-1 : Building Damage Classification Building Damage Classification (after Burland et al, 1977 and Boscardin and Cording, 1989) 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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:44 ::: 177 wp_2890.18.j.doc cracks visible. Some 2 Slight repointing may be 1 to 5 0.075 to 0.15 required for weather tightness. Doors and windows may stick slightly.
Cracks may require
cutting out and
patching. Recurrent
cracks can be masked
by suitable linings.
Tack-pointing and 5 to 15 a 0.15 to 0.3
possibly replacement number of
3 Moderate of a small amount of cracks greater
exterior brickwork than 3
may be required.
Doors and windows
sticking. Utility
services may be
interrupted. Water
tightness often
impaired.
Extensive repair
involving removal and
replacement of
sections of walls,
4 Severe especially over doors 15 to 25 but Greater than
and windows required. also depends 0.3
Windows and door on number of
frames distorted. cracks
Floor slopes
noticeably. Walls lean
or bulge
Major repair required
involving partial or
complete
5 Very Severe reconstruction. Usually greater
Beams, loadbearing, than 25 but
walls lean badly and depends on
require shoring. number of
Windows broken by cracks
distinction. Danger of
instability.
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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. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:45 :::
179 wp_2890.18.j.doc In extreme circumstance where it is not possible to limit damage to within acceptable levels demolition of the EBS can be considered.
89. Thus, the Survey Report shows that Heritage Building should be placed in most severe classification with risk "zero" and damage description is negligible. For such a category, building damage is limited to hairline cracks and tensile strain is less than 0.05%. The process of design of mitigating measures and monitoring is also prescribed. This Report needs to be considered in view of the classification as "moderate" by Respondent No.4 and "slight" by VJTI. This further lends credibility to the views expressed by the learned Senior Counsel appearing for Respondent No.4 MMRC in respect of the technical feasibility aspect of the matter. We have also perused affidavit- in-rejoinder filed on behalf of the petitioner to the affidavit-in- reply of Respondent No.4 dated 26.6.2018 filed by Mr. Jamshed Noshir Sukhadwalla and the annexures tendered along with the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:45 ::: 180 wp_2890.18.j.doc same. We have also perused the communication made by Executive Engineer dated 21.7.2015 addressed to all the tenants of building No. 598-A, J.S.S. Road, Mumbai calling upon them to vacate the building on which the repair cess is levied and the process for repairs and reconstruction as the case would be under process of law. (Chapter 8 of MHADA Act), to avoid danger in order to save life and property.
90. The learned Senior Counsel has further referred to the provisions of Article 49 and 51-A of the Constitution of India which read as under:
"49. Protection of monuments and places and objects of national importance. - It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest declared by or under law made by Parliament to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be. 51A. Fundamental duties.-- It shall be the duty ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:45 ::: 181 wp_2890.18.j.doc of every citizen of India -
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to protect harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:45 ::: 182 wp_2890.18.j.doc constantly rises to higher levels of endeavour and achievement.] [(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.]".
91. The Counsel referred to the provision of Art. 51A(f) which itself states that it shall be the duty of every citizen to value and preserve the rich heritage of our composite culture. A reference was also made to the National Highways Act, 2005 (Law enacted by Parliament of Malaysia by the learned Counsel which is placed on record. The learned Counsel for Respondent No.4 has further referred to Ancient Monuments Preservation Act, 1904. The definition of ancient monument in Section 2(1) thereof reads as under:
"2(1) "ancient monument" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock sculpture, inscription or monolith, which is of historical, archaeological or artistic interest, or any remains thereof, and includes--
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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, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:45 ::: 184 wp_2890.18.j.doc unless and until it is withdrawn, be conclusive evidence of the fact that the monument to which it relates is an ancient monument within the meaning of this Act".
92. A reference was made to the provisions of The Ancient and Historical Monuments and Archaeological, Sites and Remains (Declaration of National Importance) Act, 1951. The preamble of the said Act reads as under:
"An Act to declare certain ancient and historical monuments and archaeological sites and remains in Part A States and Part B States to be of national importance and to provide for certain matters connected therewith. Be it enacted by Parliament as follows:--
1. Short title - This Act may be called the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951.
2. Declaration of certain monuments and archaeological sites and remains to be of national importance - The ancient and historical monuments referred to or specified in Part I of the Schedule, and the archaeological sites and remains referred to or specified in Part II thereof are hereby declared, respectively to be ancient and historical monuments and archaeological sites ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:45 ::: 185 wp_2890.18.j.doc and remains of national importance.
Application of Act VII of 1904 to ancient monuments, etc. declared to be of national importance -
All ancient and historical monuments and all archaeological sites and remains declared by this Act to be of national importance shall be deemed to be a protocol monuments and protected areas, respectively, within the meaning of the Ancient Monuments Preservation Act, 1904, and the provisions of that Act shall apply accordingly to the ancient and historical monuments or archaeological sites and remains as the case may be, and shall be deemed to have so applied at all relevant times".
93. A reference was further made to the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958. Section 2(a) defines "ancient monument" and 2(j) defines "protected monument" thereof read as under:
"2(a) "ancient monument" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock sculpture, inscription or monolith, which is of historical, archaeological or artistic interest, and which has been in existence for not less than one hundred years, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:46 ::: 186 wp_2890.18.j.doc and includes --
(i) the remains of an ancient monument,
(ii) the site of an ancient monument,
(iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and
(iv) the means of access to, and convenient inspection of an ancient monument;".
"2(j) "protected monument" means any ancient monument which is declared to be of national importance by or under this Act."
94. Placing reliance on the above provisions, the learned Counsel submits that neither of two Atash Behrams is "ancient" or "protected monuments" as prescribed under the Act. They have not been notified accordingly and the petitioners are not entitled to take benefits of these provisions.
95. The learned Senior Counsel for Respondent No.4 while replying to the contentions submitted that speed for safe ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:46 ::: 187 wp_2890.18.j.doc operation of TBM is 10 mtrs. per day. TBM for the upline is 100 mtrs. away from Anjuman Atash Behram and 200 mtrs. away from Wadiaji Atash Behram. It would take approximately 10 days for the machines to reach boundary of Atash Behram and 20 days to reach Wadiaji Atash Behram from its current location. Counsel submitted that it is possible to reduce the speed of TBM to the extent possible. However, such reduction of speed increases the likelihood of squeezing of the ground, which may result in settlement of the ground at surface level. The Respondent has set-up a detailed protocol for monitoring various structures involving installation of various monitoring devices such as Ground Settlement Markers, Building Settlement Markers, cracks meters, Building Tilt Meters, Building Vibrations Monitors, Bi-reflex targets, Optical targets.
96. The following monitoring process are being implemented and shall be implemented for the concerned Atash ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:46 ::: 188 wp_2890.18.j.doc Behrams:
a. Currently the Atash Behrams are being monitored for settlement markers installed on the outer walls and pavements in front of the Atash Behrams; b. Vibrations will be monitored using vibration sensors on a 24 x 7 basis;
c. Tilt monitoring will be done by tilt plates which are installed on the external wall of Wadiaji Atash Behram; d. Any existing cracks on the outer wall can be monitored by installing crack meters and any existing cracks inside the structure can be monitored by installation of crack meters inside the structure, if such permission is granted.
A detailed system for monitoring is in place with respect to monitoring of structures:
a. A team of 4 engineers comprising of Instrumentation and Monitoring Engineer is designated for monitoring the structures b. There are defined trigger levels for the Structures within the influence zone of metro construction works viz.
(i) Alter Level : Set as 0.5 times the serviceability limit value defined for the monitored structure
(ii) Action Level : Set as 0.8 times the serviceability ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:46 :::
189 wp_2890.18.j.doc limit value defined for the monitored structure
(iii) Aler Level : Set as the serviceability limit value defined for the monitored structure c. Daily instrumentation and monitoring report is sent to the officials of the Answering Respondent, the supervision team of Contractors, the officials of the Detailed Deign Consultant and the General Consultant d. The officials of the Contractors and General Consultants are highly qualified in their respective technical fields and include Doctorates in Geology, Post Graduates in Civil Engineering and Mechanical Engineering etc.
97. The Respondent No. 4 further submits that the Down Line Tunnel has reached till Girgaum and has crossed 92 structures. Out of these structures 4 structures are classified as "Very Severe", 30 structures are classified as "Severe" and 37 structures are classified as "Moderate".
98. On the point of "controlled blasting", the Respondent No.4 has to submit as under:
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190 wp_2890.18.j.doc "1. 'Controlled Blasting" as the terminology indicates is a method of controlled usage of explosives and blasting accessories in appropriately aligned and spaced drill hole.
2. The energy and consequently the vibrations generated from such blasting method depend on the quantity of charge / detonator used for such blasting. If lesser quantity of charge is used, the amount of energy and consequently vibration generated from such charge can be limited to prefixed limits.
3. As per the British Standards, the permissible Pek Particle Velocity at EBS (Existing Building Structure) for Heritage Structure is 5 mm / sec. As per the AASHTO (American Association of Highway and Transportation Officials) Guidelines, the permissible Peak Particle Velocity at EBS for Heritage Structure is 2.54 mm / sec.
4. If the energy generated for controlled blasting at a depth of 12 metres, is taken as 2800 Joules, the Peak Particle Velocity at the Wadiaji structure would be 1.965 mm / sec. As stated earlier, the energy generated from controlled blasting can be limited by using lesser charge.
Thus, Respondent will ensure that the Peak Particle Velocity generated from controlled blasting at the Wadiaji Atash Behram will not exceed 2.54 mm / sec.". ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:46 :::
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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)".::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:46 :::
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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."::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:46 :::
193 wp_2890.18.j.doc The Respondent also placed on record photographs of instruments installed in Anjuman Fire Temple.
101. After going through the aforesaid details of precautionary measures, we find that the Respondent No.4 has prepared a standard protocol to follow the process for boring tunnel under Atash Behrams.
102. The learned Senior Counsel for Respondent no. 4 has referred to the following decisions:
(1) Mass Holdings (P) Ltd. Vs. Municipal Corporation of Greater Mumbai and Another, reported in (2006) 10 SCC 503;
(2) V.R. Advertisers Vs. Municipal Corporation of Brihan Mumbai reported in (2006) 10 SCC 508; (3) Dekay Realtors Pvt. Ltd. and another Vs. Municipal Corporation of Greater Mumbai, reported in 2012(2) Mh.L.J. 887;
(4) Sangita Balasaheb Kokare and others Vs. Alka ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:47 ::: 194 wp_2890.18.j.doc Vijayrao More and others, reported in 2012 (2) Mh.L.J. 891;
(5) Jorge Alexandre Cruz Lourenco Vs. Lucas Fernandes (Since deceased) and others, reported in 2016(5) Mh.L.J. 95;
(6) Housing Development Finance Corporation Ltd. (HDFC Ltd.) Nagpur, reported in 2016(5) Mh.L.J. 100.
(7) Amit Vishnupant Khot Vs. Union of India and others, reported in 2008(3) Mh.L.J. 257;
(8) VFS Global Services Pvt. Ltd. VS. Suprit Roy
reported in 2008(3) Mh.L.J. 266
(9) Arun Chitale (Dr.) & Ors. Vs. State of
Maharashtra reported (2014) 5 Bom. CR 139.
103. The learned ASG submitted that the petitioners have failed to establish that petitioners deserve the protection under Article 25 of the Constitution of India. The rights guaranteed under Article 25 are subject to other fundamental rights under Part III of the Constitution of India. On merits, the learned counsel submitted that the petitioners belief in respect of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:47 ::: 195 wp_2890.18.j.doc connectivity of fire underneath the earth in a circuits manner, is not supported by any evidence in the shape of scriptures, tenets. The theory of "karshas" extends the belief under the surface of earth and any construction underneath the surface of the earth would breach such karshas, is also not supported by any cogent and reliable evidence. The excerpts from the Book and affidavits filed cannot be the basis for placing reliance on these beliefs and practices. Assuming the beliefs and practices are established, the same cannot be termed as essential and integral part of Zoroastrian religion according to the learned Counsel.
104. The Metro tunnel is to be bored 60 to 65 mtrs. underneath. It goes to one corner of the Atash Behram premises at a safe distance from karshas, therefore, the theory that drilling of tunnel would desecrate the Atash Behram is not convincing and logical much less the tenets of Zoroastrian religion.
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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 Commissioner of Police and others Vs. Acharya ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:47 ::: 198 wp_2890.18.j.doc Jagadishwarananda Avadhuta and Another (supra).
109. The learned Advocate General submitted that there is no evidence on record supporting the submissions of the petitioners that the entire premises of Atash Behrams is consecrated one as even drilling of tunnel is below 60 to 65 mtrs. beneath the surface of the earth. The petitioners have failed to establish that the beliefs of the community and the practices followed are essential and integral part of religion and in case such beliefs and practices are breached, the religion itself will be under threat or would collapse. The learned Advocate General submits that Article 25 of the Constitution of India is subject to other provisions of the Part-III of the Constitution of India which cannot be read de horse the other provisions including the provisions of Article 21 of the Constitution of India.
110. The learned Advocate General further submitted that ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:47 ::: 199 wp_2890.18.j.doc a balance has to be struck while the Court appreciates the material on record for applying principles governing the provisions of Articles 21 an 25 of the Constitution of India. As regards the underground circuits of the fire below, in absence of any scriptural and textual articles placed on record, the Court even need not answer this issue as it is clearly a matter of belief of the petitioners. The affidavits filed by the high Priests and Scholars and the learned persons do not satisfy the test laid down in this behalf. The Court need to balance rights which the petitioners have claimed before the Court.
111. The learned Advocate General has placed reliance on the decision of the Supreme Court in Alaknanda Hydropower Company Ltd. Vs. Anuj Joshi and others reported in (2014) 1 SCC 769. Paragraphs 25 and 26 of the said decision, read as under:
"25. Dr. B.Jhunjhunwala, party in person submitted that ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:47 ::: 200 wp_2890.18.j.doc the High Court was right in directing a public hearing following the 1994 Notification, the necessity of the same, according to him, has been highlighted by this Court in G. Sundarrajan v. Union of India; (2013) 6 SCC 620, Dr. Jhunjhunwala has also highlighted the necessity of keeping Dhari Devi Temple on the spot at its present location. Dr. Jhunjhunwala further submitted that the right to worship stands at a higher pedestal than right to life under Article 21 and any disturbance of the temple would violate the right to worship at Dhari Devi Temple without any hindrance as guaranteed under Article 25 of the Constitution of India. Dr. Jhunjhunwala also suggested that the Temple could be saved by making a canal instead of reservoir at the impugned Project and the sacred rock in situ by constructing a dry well of sufficient height and diameter around it and providing pilgrim access to it by building an approach road.
26. We have gone through the affidavits filed by the State of Uttarakhand and we find they have wholeheartedly accepted the B.P. Das Committee Report and the report dated 3.5.2013 submitted by the joint team and also the B.K. Chaturvedi interim report dated September 2012. When this Court constituted the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:48 ::: 201 wp_2890.18.j.doc Committee on 25.4.2013, this Court directed the inclusion of the State Government representative as well, so that the State Government can express its views on various issues including the issue relating to Dhari Devi Temple. The State Government in their affidavit, it may be noted, have not questioned the suggestions made by the Committee in its report dated 3-5-2013. Consequently, we have to take it that the State Government has no objection whatsoever with regard to the suggestion made by the Joint Committee in its report dated 3-5-2013 i.e. raising the temple above the highest flood level at its current location and to install the idol at higher elevation at the same spot with access to the Temple through a pedestrian bridge from the left bank. The Committee specifically stated in the report that they had visited Dhari Devi Temple site and met the trustees, priests of the Temple and a few residents of Village Dhari and no objection was raised either by the trustees or priests of the Temple on the suggestion made by the joint team in the report dated 3-5-2013".
112. The learned Advocate General has further relied upon the decision of this Court dated 5.5.2017 in Mrs Pervin ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:48 ::: 202 wp_2890.18.j.doc Jehangir and others Vs. Union of India and others in W.P.No. 814 of 2017 along with W.P. (L) No. 365 of 2017 (2017 SCC OnLine Bom 2510). Paragraph 16 of the said judgment reads as under:
"16. The petitioners do not dispute that the project in question is a project of considerable public importance for a metropolitan city like Mumbai. The Metro 3 project is stated to be a fully underground, rail based mass public rapid transport system, of the total length of about 33.5 kilometers. There can be no dispute that present public transport facilities in Mumbai city are grossly over-crowded, over-strained and inadequate. It is a matter of common knowledge that citizens are required to travel with immense pain and hardship and in conditions endangering their lives in the overcrowded existing suburban trains and buses. Desire for a smooth and comfortable travel in Mumbai had remained a distant dream. To decongest this pressure on the existing transport system and to increase mobility across the region, the State ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:48 ::: 203 wp_2890.18.j.doc authorities had decided to undertake diverse Metro rail projects. The Metro Rail line 3 project is stated to provide a high quality public transport system to the vast population, particularly, beneficial to Wards A, C, D, E, G/S, G/N, A/E and K/E. It is projected that about 13.87 lakhs passengers per day can be benefited by Metro Rail Line 3. It is stated to connect 30 educational institution, 6 central business district, 30 recreational centers and the domestic and international air terminals. It is expected to save about 60 minutes of the passengers average traveling time per day, resulting in reduction of road traffic, fuel consumption and air pollution. There is a projection of estimated reduction of 6800 tons of Carbon Dioxide (CO2) in 2021 and 9907 tons by 2041. Further it is estimated that there would be reduction of Carbon Monoxide (CO) to the tune of 4327 tons in 2021 and increasing to 6304 tons to 2041. If these are the benefits of the Metro Rail 3, there can be no doubt that it would be of enormous benefit to the public on all counts".::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:48 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:48 ::: 205 wp_2890.18.j.doc V. Union of India and others; (2013) 6 SCC 620 and it was urged that the larger public interest of the community should give a way to individual apprehensions of violation of human rights and the rights guaranteed by Art. 21 of the Constitution of India. The learned senior counsel for the added respondent also relied upon the finding recorded by the first Court in respect of the same Metro Railway Project in the order dated 5th November, 2017 in W.P.No. 814 of 2017 (Ms. Parvin Jehangir and others v. Union of India and others). The learned senior counsel for the added respondent relied upon another decision of the Apex Court in the case of Asha Ranjan v. State of Bihar and others; (2017) 4 SCC 397 which again deals with the conflict of fundamental rights between two different classes of citizen. He submitted that the fundamental rights are also subject to reasonable restrictions.
114. The learned Advocate General has lastly placed reliance on the decision of the Supreme Court in Asha Ranjan Vs. State of Bihar and others & Chandrakeshwar Prasad Vs. Union of India and others (supra). Paragraphs 55 and 56 of the said decision read as under:
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206 wp_2890.18.j.doc "55. In Subramanian Swamy Vs. Union of India (2016) 7 SCC 221 : (2016) 3 SC (Cri.) 1 the Court after referring to the said authority ruled that: (SCC p.319, para 137) "137. .... the issue herein is sustenance and balancing of the separate rights, one under Article 19(1)(a) and the other, under Art. 21. Hence, the concept of equipoise and counterweighing fundamental rights of one with other person. It is not a case of mere better enjoyment of another freedom. In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat; (1975) 1 SCC 11, it has been observed that a particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have to coexist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the directive principles in the interests of social welfare as a whole. The Court's duty is to strike a balance between competing claims of different interests. In DTC v. Mazdoor Congress; 1991 Supp (1) SCC 600: 1991 SCC (L&S) 1213 the Court has ruled that articles relating to fundamental rights are all parts of an integrated scheme in the Constitution and their waters must mix to constitute that ground flow of unimpeded and impartial ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:48 ::: 207 wp_2890.18.j.doc justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes".
56. In this context, it is also appropriate to refer to certain other decisions where the Court has dealt with the concept of competing rights. We are disposed to think that dictum laid therein has to be appositely appreciated.
In 'X' v. Hospital 'Z' (1998) 8 SCC 296, the issue arose with regard to right to privacy as implicit in the right to life and liberty as guaranteed to the citizens under Art. 21 of the Constitution and the right of another to lead a healthy life. Dealing with the said controversy, the Court held that as a human being, Ms. 'Y' must also enjoy as she obviously is entitled to all the human rights available to any other human being. This is apart from, and in addition to, the fundamental right available to her under Art. 21, which guarantees "right to life" to every citizen of this country. This Court further held that where there is a clash of two fundamental rights namely, the appellant's right to privacy as part of right to life and Ms. Y's right to lead a healthy life which is her fundamental right under Art. 21, the right which would advance the public morality ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:49 ::: 208 wp_2890.18.j.doc or public interest, would alone be enforced through the process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as the courtroom, but have to be sensitive".
115. The learned Advocate General submits that circumstances may emerge which may necessitate to maintain balance between intra fundamental rights. Test has to be applied while balancing two rights i.e. fundamental rights or inter fundamental rights. The learned Advocate General therefore, submits that the citizens too have rights to move freely and safely. While placing reliance on Art. 21 the learned Advocate General submits that Art. 25 is subject to Art. 21 and therefore, the Court needs to strike a balance between these two provisions.
116. We have carefully perused the judgments cited (supra) relied upon by learned Additional Solicitor General and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:49 ::: 209 wp_2890.18.j.doc the learned Advocate General and we find that their submissions on merits need to be addressed.
117. We have perused the extracts annexed to the petition from Book named "THE RELIGIOUS CEREMONIES AND CUSTOMS OF THE PARSEES" written by Jivanji Majmshedji Modi wherein in Chapter IX (Ref. Pg. 46 i.e. annexure to petition), "Consecration Ceremonies" are described as under:
"Consecration is "the act or ceremony of separating from a common to a sacred use, or of devoting and dedicating a person or thing to the service and worship of God" by certain rites or solemnities. Consecration does not make a person or thing sacred but declares him or it to be sacred, that is devoted to God or to divine service; as the consecration of priests among the Israelites; the consecration of the vessels used in the temple; the consecration of a bishop. The Parsees have no consecration of persons, in the sense in which the word is used among the Christians, e.g., ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:49 ::: 210 wp_2890.18.j.doc the consecration of a bishop. If, by consecration is meant conferring of a certain qualification upon a person to enable him or to entitle him to do a certain religious function or rite, they have such a consecration. But the principal idea is, that the person seeks consecration by his own willing acts rather than any other person conferring the consecration. So, in the case of a person, the more proper word, from a Parsee point of view, is "initiation" than "consecration".
118. Consecration of the sacred fire of the First Grade, the Atash Behram is also mentioned by the Writer (Ref. Pg. 47 of annexure to petition). We may reproduce the following passage:
"The process of collecting the different fires and of purifying and consecrating them is so long and intricate, that, naturally, authorities differ in the matter of the details, though they agree on broad general principles. While writing on the subject of his process, the late Dastur Minocheherji Jamaspji ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:49 ::: 211 wp_2890.18.j.doc Jamaspasanal said, that in the case of all the six Atash Behrams founded and consecrated in Bombay and elsewhere, there has not been any similarity in the matter of the process. The process has differed in details. In the following account, I principally follow the description given by the late Dastur Erachji Sorabji Meherji Rana. The Ithoter Revayet also referred to this subject".
119. Further writing titled as "ZOROASTRIANISM ANCIENT AND MODERN" by ERVAD PHIROZE SHAPURJI MASANI, is placed on record and relied upon by the learned Counsel for the Petitioners. We have perused the said material. The petitioners have placed certain photographs and sketch maps and two such maps are annexed herewith for the sake of convenience for appreciating the petitioners' case (Ref. In Paper Book (5) of petitioner written submission). ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:49 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:49 ::: 215 wp_2890.18.j.doc all around the globe. I say that, the said Report is also silent on this issue which was brought to the notice of VJTI on 2nd August, 2018 in the Written Submissions filed on behalf of Respondent Nos. 5 to 12".
121. We have perused scriptures, the material, writings of Priests and the knowledgeable persons of the community in the field. Mr. J.J. Modi has clearly distinguished between the place of "sacred fire" i.e. "sanctum sanctorum" vis-a-vis the attached apartments i.e. Der-i-Meher. We have also considered the sketch plans and the photographs of the premises.
122. The history of Zoroastrian religion begins from the ancient Iranian homelands of the Steppes of Central Asia with the advent of the Prophet Zarathushtra (or Zoroaster, as he was called in the Greek literature). Scholars place Zarathushtra at 1768 BCE. The faith flourished through the rise and fall of many ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:49 ::: 216 wp_2890.18.j.doc civilizations. For thousand years (558 BCE to 652 CE) it was the court religion of three Iranian Empires, those of the Achaemenians, the Parthians and the Sasanians and stretched across Asia from Greece in the west to the Hindu Kush in the east, up into Southern Russia, and down into Egypt.
123. One of the Zarathushtra's first disciples was Iranian King Vistashpa. The scriptures of Zarathushtra are contained in the ancient texts. The Avesta, written in the Avesta language. Of these, the divine system, the Gathas, are the words of Prophet Zarathushtra himself. According to Scholars and Researchers, Zoroastrianism is considered to be one of the oldest surviving religion in the world.
124. It has come on record that there are four wells in the Wadiaji Atash Behram and three wells in Anjuman Atash Behram. Nearest well in the Wadiaji Atash Behram is 42 feet ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:50 ::: 217 wp_2890.18.j.doc away from the nearest point of the tunnel while the Atash Behram 15 feet away. These wells are in the top soil layer of about 20 feet deep while the tunnel is in the rock and is at 60 to 65 feet deep from the ground level. Thus, there is a clear vertical space of 42 to 46 feet of rock mass between bottom of wells to the top of the tunnel. It was noticed that in the absence of any metro related construction activity, there is a daily fluctuation in water level in the wells. The planners have taken into consideration the passenger movement during the normal operation as well as during the fire emergency. Station amenities and service are also taken into consideration.
125. Our Research has shown that the London developed its first Metro system in 1843. About 150 cities of various sizes all over the world had rapid transit rail for decades specially in Asia, Africa and Latin America. The citizens of Mumbai do deserve efficient, suitable and environment friendly mass ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:50 ::: 218 wp_2890.18.j.doc transport system. There is an acute need to serve millions of masses. The State is duty bound to provide an efficient transport system to its people.
126. Our Research further shows that tunneling techniques are available from 18th Century onwards first it was in the United Kingdom's network of canals and railways which made extensive use of tunnels to cross natural features (e.g. the River Thames and Severn). In the early 20 th Century, underground railways expanded rapidly, using technical advances such as pre-cast concrete linings and supports. After the War, road and rail networks across Europe expanded further, but it was not until the early 1960s that tunneling technology made a major advance in the form of the Tunnel Boring Machine (TBM). The study shows that in the field of tunneling and underground space technology by 2050, 70% people will live in cities and the world urban population will have more than ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:50 ::: 219 wp_2890.18.j.doc doubled compared to the turn of the century. Underground and metro systems, according to the Experts, Researchers are less prone to earthquake danger and have suffered little or no damage in major earthquakes.
127. We have also noticed that all over the world, where heritage sites are located within the cities, the development of cities is planned in a manner so as to maintain balance between infrastructural development while retaining and maintaining heritage and important sites and structures. This is often a difficult balance to maintain. London, Rome, Istanbul, Beijing, Delhi and Jaipur are such examples where balancing exercise has been done effectively with the aid and assistance of the experts in the field and financial backing of Central and State Governments. The citizens of Mumbai would reasonably expect and deserve such a system to be introduced in the larger public interest.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:50 ::: 221 wp_2890.18.j.doc contributing immensely in all spheres of social, human and cultural lives of the citizens. The persons from the community have made indelible mark in whichever field they entered into and created a distinct and distinguished position for themselves. This fact has also been equally and fairly recognized by the learned Senior Counsel appearing for Respondent No.4 and while appreciating the contribution of the community in the over all development of the country, the counsel urged that the petitioners be little accommodative to allow the project to be implemented.
PER R.G.KETKAR, J.
130. I have perused the draft judgment prepared by the Hon'ble the Chief Justice and I entirely agree with the conclusions drawn by him, but since the approach in arriving at a conclusion is as important as the conclusion itself, and particularly in matters involving vital constitutional issues ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:50 ::: 222 wp_2890.18.j.doc having a far-reaching impact on fundamental freedoms of people and on the social objectives which the State is enjoined to achieve under the Directive Principles of State Policy, I consider it my duty to express my views in my own way for arriving at those conclusions.
131. The petitioners are practicing the Zoroastrian faith. The petitioners have come with the case that respondents No.1 to 4 are in the process of implementing the Metro Project in various phases in the City of Mumbai. The proposed Metro Project involves phases where the project will be implemented underground. The project includes Mumbai Metro Line 3 (for short, MML-3) which is a long corridor running along Colaba- Bandra-SEEPZ. A part of this MML-3 has been proposed to run under Jagannath Shankar Sheth Road (for short, 'JSS Road') which includes a number of heritage structures including two of the holiest Zoroastrian Fire Temples of the Highest Degree ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:50 ::: 223 wp_2890.18.j.doc (Atash Behrams), namely, Hormasji Bomanji Wadia Atash Behram and Zarthosti Anjuman Atash Behram. These Atash Behrams are of tremendous spiritual significance for Zoroastrians. The petitioners are the devotees who regularly visit both the aforesaid Atash Behrams. The petitioners contend that the construction of Hormasji Bomanji Wadia Atash Behram was completed in the year 1830 around 188 years ago. The Zarthosti Anjuman Atash Behram has been constructed in the year 1897 around 122 years ago. These Atash Behrams have been consecrated over a century ago after performing complex and elaborate rituals by highly trained priests and have a special spiritual and religious significance for individuals practicing and professing the Zoroastrian faith. Both these structures have been classified as heritage buildings under Regulation 67 of the Development Control Regulations for Greater Bombay, 1991 (for short, 'D.C. Regulations'). ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:51 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:51 ::: 225 wp_2890.18.j.doc energy in the universe. Subsequently, fire temples were built in honour of the divinity presiding over the fire and consecrated physical forms of ever-burning fires were installed in the sanctum sanctorum of the respective fire temples. There are three grades or categories of sacred fires : (1) the sacred fire of the Atash Behram, which is of the highest grade, (2) the sacred fire of the Atash Adaran and (3) the sacred fire of Atash Dadgah. The first two grades are necessarily consecrated fires and are installed in separate chambers. They are served five times daily during the day and night through ceremonies known as 'boe' and care is taken that the fires are continuously burning. These fires are attended to by qualified priests. Both these Atash Behrams house all three grades of Holy fire within the premises of the respective Atash Behrams installed at separate places within the said premises.
134. The petitioners contend that there are eight such ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:51 ::: 226 wp_2890.18.j.doc Atash Behrams in India. The entire structure of the Atash Behram is a composite integrated whole and includes the sacred fire of the Atash Behram, the sacred fire of the Atash Adaran, the sacred fire of the Atash Dadgah, the chambers which house the respective fires above, various other places where ceremonies and rituals are performed, wells and the entire premise on which the Atash Behram is situate. The entire Atash Behram premises is consecrated. The petitioners contend that to believe that only the sanctum sanctorum comprises the Atash Behram is a fallacy. During the process of consecration and enthronement, the holy fire, is connected spiritually to the Mother Earth from which it draws sustenance. Prior to entering into the sanctum sanctorum of the above Atash Behrams for conducting the religious ceremonies therein concerning the sacred Atash Behram fire, the priests who perform these ceremonies have to undergo preparatory rituals in these consecrated places in the Atash Behram premises. The ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:51 ::: 227 wp_2890.18.j.doc entire premises of the Atash Behram is treated as one composite sacred whole and not just the sanctum sanctorum where the holy Atash Behram fire is enthroned. The petitioners rely upon the book "The Religious Ceremonies and Customs of the Parsees" by Ervad Shams-Ul-Ulama Dr. Sir Jivanji Jamshedji Modi at page
247.
135. The petitioners contend that the process of consecration of an Atash Behram is an elaborate and intricate procedure involving highly-trained priests performing various complex rituals. In modern times, it is virtually impossible to consecrate a fire temple of the Highest Degree, namely, an Atash Behram. Its rarity has, therefore, to be preserved. In fact the last Atash Behram being Zarthosti Anjuman Atash Behram was consecrated over 122 years ago. Thereafter there has never been consecration of any Atash Behrams in India. It is virtually impossible today to consecrate an Atash Behram due to a variety ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:51 ::: 228 wp_2890.18.j.doc of reasons including the non-availability of trained priests and the complex rituals that go into the process of consecrating Atash Behrams. The petitioners have annexed pages-199 to 266 from Dr. J.J. Modi's book at Exhibit-D to the Petition.
136. The petitioners contend that in the Zoroastrian faith, ceremonies can be broadly divided into (1) inner liturgical services, and (2) outer liturgical services. The inner liturgical services are those religious services which can be performed in a separate place specially allotted for the purpose. Such a place is known as Urvisgah and is generally connected with the fire temple. These types of ceremonies are intricate in nature and demand a very high degree of purity and rigorous workout. Only highly trained priests known as Yaozeathregars could perform such ceremonies. These priests are first required to undergo the highest form of purificatory ritual known as Barashnum (nine days and nine nights of retreat) and then could perform such ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:51 ::: 229 wp_2890.18.j.doc ceremonies. They also have to observe and maintain some very stringent laws of purification. These ceremonies are therefore generally spoken of as pav-mahal ceremonies i.e. ceremonies of the holy or consecrated house. The secluded places required for the purpose of performing inner liturgical services are marked by formation of boundary lines which are the karsha. The karsha is also intended to preserve the efficacy of the consecrated fire and the consecrated articles of the sacred ceremonies within them. The Karshas extend to and cover the entire premises of the Atash Behram. If a tunnel is allowed to pass under the Atash Behram premises it will amount to a breach of the Karshas which are the protective circuits protecting the sacred fires consecrated and enthroned within the Atash Behram premises.
137. The petitioners contend that certain rituals are conducted at the time of enthronement of the holy fire in the Atash Behram which enable the holy fire to draw sustenance ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:51 ::: 230 wp_2890.18.j.doc from Mother Earth. During the process of consecration, great care was taken along with a number of ritual precautions to maintain this connection and sanctity. According to tradition pav mahal ceremonies cannot be performed on an elevated place, that is to say, on the upper floor of a house or a building. They are to be necessarily performed on the ground floor, that too, with direct connection to Mother Earth. The belief is that there should be no motion or movement beneath it. The petitioners contend that if a tunnel were to be bored under the Atash Behram premises, that would result in the premises being considered to be on an elevated level and the connection with the ground would be deemed to be breached. It would result in the spiritual violation of the sanctity of the Atash Behram. Any motion or movement under the Atash Behram premises would directly interfere with the spiritual sanctity of the Atash Behram resulting in its desecration.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:52 ::: 233 wp_2890.18.j.doc further goes on to show that the entire premises of the Atash Behram are a composite whole comprising of various aspects which are all intricately connected and interdependent. The prospect of a metro tunnel running under an Atash Behram premises is likely to severely affect the wells in the premises of the Atash Behrams and any such consequence would result in performance of the rituals and ceremonies within the Atash Behram premises being rendered impossible. Such a situation would result in irreparable damage to the petitioners and the spiritual sentiment and belief of the members of the Zoroastrian community.
140. The petitioners contend that besides the spiritual damage which is irreversible, there is a distinct possibility that there will be physical damage to the structure and the edifice of these two Atash Behrams, which are heritage structures. This damage can happen either during the construction phase or even ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:52 ::: 234 wp_2890.18.j.doc during the running of the metro trains directly under these heritage buildings over a period of time. Further, damage to the sanctum sanctorum itself, the holy consecrated Atash Behram fire, the consecrated Adaran fire and the rest of the Atash Behram premises cannot be ruled out. Any damage or destruction of the Holy Atash Behrams will devastate religious sentiments of Zoroastrians worldwide. The petitioners rely upon the incident in respect of a building named Jer Mahal Annexe, where Kalbadevi Road meets JSS Road, suffered significant damage which included collapsing of ceiling walls as a result of construction of the tunnels. In fact the third floor of a room had caved in, through the second floor, plunging down a resident who landed on the first floor but survived with injuries. It has been recorded that heavy vibrations were being felt since days prior to the incident and also just before the collapse. The contractors of respondent No.4 Mumbai Metro Rail Corporation (for short, 'MMRC') were seen propping the Jer Mahal building ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:52 ::: 235 wp_2890.18.j.doc few days before the incident. The petitioners also rely upon a case pertaining to Metro construction in the city of Chennai. It was observed that the 121-year old Arcot Lutheran Church developed cracks as a result of tunnel boring machines operating underneath the building as part of the metro rail tunneling work. The area in which the church is located, like the area where the H.B. Wadia Atash Behram and the Zarthosti Anjuman Atash Behram are located, is highly congested. The petitioners furher contend that the Preconstruction Building Condition Survey Report for MML-3 (Colaba-Bandra-Seepz) dated 14.3.2017 records that the structural health of H.B. Wadia Atash Behram is "generally unsatisfactory". The petitioners have referred to the correspondence made by them with various authorities.
141. The matter was moved before the Vacation Bench on 23.5.2018. This Court directed five members of the Board of Directors of respondent No.4 to hear the petitioners, the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:52 ::: 236 wp_2890.18.j.doc Architect nominated by them, the Trustees of Atash Behrams, the High Priests, their Advocates if any and submit report. This Court accepted the statement made by the learned Advocate appearing for respondent No.4 that until next date of hearing, respondent No.4 shall not carry out any drilling work beyond the boundaries of Atash Behrams. It was also clarified that respondents No.1 to 4 shall not claim any equities in response to the submissions made by the petitioners seeking directions against respondents No.1 to 4 to realign the metro rail construction.
142. Petitioner No.1 Jamshed Noshir Sukhadwalla has made affidavit dated 7.6.2018 (pages 146-147) enclosing therewith following affidavits at Exhibits-A to E and the correspondence:
(i) affidavit dated 24.5.2018 (pages 148-150) made by ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:52 ::: 237 wp_2890.18.j.doc respondent No.5 - Vada Dasturji Dr. Kaikhusroo M. Jamasp Asa. He has filed affidavit in the capacity as one of the High Priests of the Zoroastrian Parsi/Irani community of India.
He reiterated what is stated in his letters dated 21.10.2017, 6.4.2018 and 7.5.2018. He reiterated that Atash Behram is a composite whole comprising not just the consecrated fire enthroned in the sanctum sanctorum but also includes, within this definition, the entire premises of the Atash Behram. He has supported the case made out by the petitioners.
(ii) affidavit dated 26.5.2018 (pages 156-158) made by Vada Dasturji Kaikhushroo N. Dastoor Meherjirana substantially reiterating what the petitioners and Vada Dasturji Dr. Kaikhusroo M. Jamasp Asa have stated.
(iii) affidavit dated 28.5.2018 (pages 159-161) made by Vada Dasturji Dr. Firoze M. Kotwal. He referred to his attending a meeting in or around 9.11.2017 with the Government outlining his concerns with respect to the proposed MML-3 (Colaba-Bandra-Seepz) tunnel being bored under the H.B. Wadia Atash Behram and Rarthosti Anjuman Atash Behram. He has reiterated what the petitioners, Vada Dasturji Dr. Kaikhusroo M. Jamasp Asa and Vada Dasturji Dr. Firoze M. Kotwal have stated in the petition and the affidavits.
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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) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:52 ::: 239 wp_2890.18.j.doc
144. Respondent No.6 has made affidavit on behalf of respondents No.5 to 9 on 11.6.2018 supporting the petitioners. (pages 169-171).
145. Petitioner No.1 Jamshed Sukhadwalla has made affidavit dated 13.6.2018 (pages-181-186) enclosing therewith :
(i) letter dated 4.6.2018 addressed by the Bangalore Parsee Zoroastrian Anjuman, Bangalore (page-187)
(ii) letter dated 4.6.2018 addressed by Bardoli Jarthosti Anjuman, Bardoli (pages 188-189)
(iii) letter dated 4.6.2018 addressed by the Broach Parsi Panchayet Office, Bharuch (page-190)
(iv) letter dated 4.6.2018 addressed by Bulsar Parsi Anjuman Trust Funds, Valsad (page-191)
(v) letter dated 4.6.2018 addressed by Nargol Parsi Jarthosti Anjuman, Sanjan Nargol (page-192)
(vi) letter dated 4.6.2018 addressed by Navsari Samast Parsi Zoroastrian General Fund, Navsari (page-193)
(vii) letter dated 4.6.2018 addressed by Parsi Zoroastrian Anjuman of Secunderabad and Hyderabad, Secunderabad (page-194) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:53 ::: 240 wp_2890.18.j.doc
(viii) letter dated 6.6.2018 addressed by Belgaum Parsi Zarthosti Anjuman, Belgaum (page-195)
(ix) letter dated 7.6.2018 addressed by the Parsi Zoroastrian Anjuman, Mhow (page-196)
(x) letter dated 8.6.2018 addressed by the Thana Parsi Zoroastrian Anjuman, Thane (page-197)
(xi) letter dated 8.6.2018 addressed by Vansda Parsi Zarthosti Anjuman, Vansda (page-198)
(xii) letter dated 9.6.2018 addressed by Navsari Atashbehram & Vadi Daremeher Trust Fund, Navsari (page-199)
(xiii) letter dated 11.6.2018 addressed by Ahmedabad Parsi Panchayat, Ahmedabad (page-200)
(xiv) letter dated 12.6.2018 addressed by Davier Parsee Zarthosti Anjuman Fund Davier, Andheri (East), Mumbai (page-201)
(xv) letter dated 12.6.2018 addressed by Surat Nanpura Parsi Jarthosti Anjuman, Surat (page-202) (xvi) letter dated nil addressed by Solapur Parsi Anjuman, Solapur (pages 203-204) all addressed to the petitioners Advocates and Solicitors.
146. The Committee of five Directors of respondent No.4 submitted report dated 15.6.2018 in this Court. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:53 :::
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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. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:53 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:53 ::: 244 wp_2890.18.j.doc and the construction of MML-3.
150. In paragraph-7, it is reiterated that the construction of MML-3 is being carried out by respondent No.4 after exercising extensive due diligence. A detailed protocol has been laid down for the protection of heritage buildings such as the Atash Behrams and other buildings from the impact of tunneling and excavation works. The subject buildings are assessed and categorized based on the structural health of the building. In cases where the health of the structure is precarious, protection and mitigation measures are undertaken and continuous monitoring is undertaken during construction. Along with the affidavit, the report titled "Approach to Protection of Heritage (and other) Buildings from Impacts of Tunneling and Excavation Works" is enclosed [pages 232-261]. As per the Building Condition Survey Report (for short, "BCS report"), the Anjuman ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:53 ::: 245 wp_2890.18.j.doc Atash Behram is classified as "Slight" building category (i.e. building with moderate non-structural cracks, severe non- structural cracks and presence of water seepage). The BCS report for Wadia Atash Behram classifies it as "Moderate" building category (i.e. building with minor, sporadic spalled concrete and presence of water seepage). It is stated that although 280 meters of tunneling work has been undertaken in the Kalbadevi area by respondent No.4 underneath buildings categorized as "Severe" building category (i.e. building with major extensive spalled concrete, bulging of structural and load bearing elements, exposure of reinforcement bars of columns and beams and presence of water seepage), and "Very Severe"
building category (i.e. building with deteriorated structural/load bearing elements, heavily exposed reinforcement in columns & beams of framed structures, deflected/titled and propped structural elements and water leakages) as per the BCS report, no data recording settlements, tilt or change in the crack width ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:53 :::
246 wp_2890.18.j.doc with respect to such buildings were recorded. The same construction techniques have been employed in various areas of Mumbai City without any adverse incidents Respondents No.10 to 12, being Trustees of Hormasji Bomanji Wadia Fire Temple Charity Fund have restrained respondent No.4 from undertaking BCS through a Parsi contractor or installing monitoring instruments within the premises, inspite of repeated requests. It is further contended that the petitioners have relied upon mere speculations and not actual facts to state that the construction of MML-3 threatens the structural integrity of Atash Behrams.
151. In paragraph-8 the affiant has dealt with the contention of the petitioners as regards likelihood of the wells getting dried up. It is submitted that the nearest well within the Anjuman Atash Behrams is 15 ft. away from the nearest point of the tunnel and that of Wadiaji Atash Behram is 42 ft.. The wells ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:54 ::: 247 wp_2890.18.j.doc are situate in the top soil layer within a depth of nearly 20 ft. while the tunnel is being bored within the basalt rock layer at 60 to 65 ft. depth from the ground level. There is considerable space and difference of layers between the wells and the tunnel. The monitoring of water levels at Atash Behrams reflects fluctuations inspite of the fact that no metro related activity is being undertaken in the vicinity. The fluctuation in water level is dependent on the climate and the drawal of water by any person or agency in the vicinity of the well. It is submitted that even if certain temporary fluctuations are observed when the tunneling work reaches the vicinity of Atash Behrams, it is expected that the same will be normalized once the TBMs pass through the areas. As a matter of precaution, 14 groundwater charging wells are being installed in the area whereby water from the construction site and ground water from Kalbadevi area will be used to recharge and maintain the ground-water levels in the area.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:54 ::: 249 wp_2890.18.j.doc accruing from such project to the society at large, might be frustrated owing to it being challenged by a section of the society for reasons of private or individual grievances. Respondent No.4 has undertaken the project by exercising due diligence and employing procedures adhering to the industry standards is clear from the material placed on record.
153. The Engineers and other experts employed by respondent No.4 have taken the mitigating factors arising out of individual cases into consideration while planning and designing and it is only after taking the requisite measures to safeguard the structures that the construction of each package of MML-3 is being undertaken.
154. In paragraph-16 the affiant has dealt with paragraph- 8 of the Petition. It is contended that in any case, the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:54 ::: 250 wp_2890.18.j.doc significance of the fire or the fire temple has to be considered in the context of the fundamental right to practice of religion. The affiant has put the petitioners to strict proof regarding the contents of paragraphs-9 to 13. It is contended that the petitioners have failed to establish that if the tunnel is allowed to pass beneath the premises of the Atash Behrams, an essential and integral part of the Zoroastrian faith would be defeated. Commenting on Exhibit-D to the petition, it is contended that no reference was made by the author which would mandate that the passage of a tunnel beneath the premises of an Atash Behram would defile the sanctity of the holy fire.
155. In sub-paragraph-b of paragraph-17, the affiant has dealt with "Karshas" referred to in paragraph-11 of the Petition which is explained in Exhibit-D. In sub-paragraph-c of paragraph-17, it is contended that a tunnel passing 60 to 65 ft. below the ground level cannot breach a "Karsha" and thus cannot ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:54 ::: 251 wp_2890.18.j.doc defile the sanctity of all that is placed within the same. There is no reference that seems to suggest that the "Karshas" extend indefinitely under the surface of the earth, nor is there any reference to suggest that they are intended to so extend beneath the marked area in order to protect any 'link' according to the petitioners which exist in the ceremonial fire in the Fire Temple and the fires that burn inside the earth. The petitioners have also not shown any basis which supports the contention that the fire which is ignited after following the required rituals is connected to subterranean fires beneath the surface or that the Atash Behram is required to be in constant connection with any electromagnetic field for receiving vibrations. In any case, assuming, though not admitting, that there exists some basis in the religious texts, such belief or any practice related thereto cannot be understood to constitute the essence of Zoroastrian faith, as it will at best be understood to be a belief or practice. The Right to Religion contained in Article 25 is held to extend its ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:54 ::: 252 wp_2890.18.j.doc protection of only those religious practices without which a given religion would lose its specific identifiable character. In sub- paragraph-d of paragraph-17, it is contended that the petitioners have failed to prove that the passage of the metro tunnel underneath the premises of Atash Behrams would lead to destruction of an essential practice of the Zoroastrian faith which destroys the very religion itself.
156. In paragraph-20 the affiant has dealt with the contents of paragraph-18 of the Petition. Reference is made to Article reported in English Newspaper "The Guardian" titled "Dark forces will be unleashed: the fire temple v. the Mumbai metro" dated 14th December, 2017, quotes High Priest of the Wadia Atash Behram, respected Vada Dasturji Firoz M. Kotwal saying that "Neither Zoroastrianism nor its rituals are in any danger from the metro tunnel". The Article further quotes the High Priest in the following manner :
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253 wp_2890.18.j.doc "The MMRC team convinced us with concrete proof that there was no danger at all to the fire temple, and the chief minister gave us a personal assurance of safety. So the hue and cry is baseless.
Kotwal says. "Neither Zoroastrianism nor its rituals are in any danger from the metro tunnel."
"Kotwal also says that the "mystic circuits" cited in the petition are not a part of the ancient texts of Zoroastrianism in its 6th Century incarnation, but were introduced by the 19th Century Kshnum cult..."
Again the Article quoted disagreement expressed by the respected Vada Dasturji Khurshed Dastur, the High Priest of the Iranshah Atash Behram, Udvada, Gujarat as under :
"The high priest of Zoroastrianism's holiest shrine (at Udvada in neighbouring Gujarat) and the community's representative in the secular National Commission for Minorities is similarly concerned that the petition is fear run amok. "It is the work of a minuscule group with nothing better to do," says Dastur Khurshed Dastur. "How to deal with eccentric people with closed minds out to whip up a fear psychosis?"
157. Relying upon this Article dated 14.12.2017, it is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:54 ::: 254 wp_2890.18.j.doc contended that two of the High Priests belonging to the community have had different opinions from that of the petitioners about the basic tenets of the Zoroastrian religion. The Article is annexed at Annexure-4. Reference is made to the meeting of the High Priests with the officials of respondent No.4 and the Hon'ble Chief Minister of Maharashtra and the letter dated 10.11.2017 addressed by the Managing Director the fourth respondent to two High Priests at Exhibit-J-1 to the Petition.
158. In paragraph-27 it is contended that the petitioners have failed to place on record the material to prove that a connection between the holy fire and Mother Earth is an integral and essential part of Zoroastrianism, without which the very characteristics of the faith will be lost. It is submitted that there is no reason to conclude that the miniscule physical vibrations emanating from the metro line would interfere with the spiritual vibrations emanating from the holy fires housed in two Atash ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:55 ::: 255 wp_2890.18.j.doc Behrams. Certain practices even though regarded as religious, may have sprung from merely superstitious beliefs and in that sense can be only extraneous and unessential accretion to religion itself. Such practices can be abrogated and are not protected under Article 25 of the Constitution.
159. On behalf of the petitioners, affidavit-in-rejoinder dated 11.7.2018 is made by petitioner No.1. Reference is made to paragraph-8 of the Report submitted by the Committee of five Directors of the fourth respondent to this Court in pursuance of the order dated 23.5.2018. It is reported that the collapse of Jer Mahal Annexe building (very near the Atash Behrams) has a direct consequence of the underground construction. The workers of M/s. HCC-MMS JV (contractor employed by the fourth respondent) were seen propping up the Jer Mahal building few days before the collapse of Jer Mahal Annexe building, as respondent No.4 was anticipating the damage to Jer Mahal ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:55 ::: 256 wp_2890.18.j.doc building as a result of the underground tunnel boring.
160. On 21.4.2018 at about 3:15 a.m., a portion of the third floor flooring of Jer Mahal Annexe collapsed onto the second floor flooring and further came crashing down to the first floor flooring. It is reitereated that fire plays a central part in the Zoroastrian rituals and no Zoroastrian ritual can be complete without the presence of fire. Reliance is placed on a book titled "Outlines of Parsi History" by Hormazdyar Dastur Kayoji Mirza at pages-232 to 233. The rejoinder also reiterates the contentions advanced by the High Priests in their affidavits.
161. Respondents No.10 to 12 have filed affidavit-in- rejoinder dated 11.7.2018 in reply to the affidavit by respondent No.4 Respondents No.10 to 12 have reiterated their contentions stated in the writ petition and their affidavits. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:55 :::
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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. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:55 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:55 ::: 259 wp_2890.18.j.doc more severely and directly impact the structural stability of the structures in the vicinity including the H.B. Wadia Atash Behram.
167. The petitioners have filed affidavit of petitioner No.1 dated 4.8.2018 enclosing therewith Exhibits-A to D.
168. Hosi Daly Dastur, respondent No.12 made affidavit dated 8.8.2018 on behalf of respondents No.10 to 12.
169. On 9.8.2018, VJTI submitted its report in this Court. The petitioners filed affidavit of petitioner No.1 dated 13.8.2018 in response to the said report along with compilation of documents.
170. Hosi Daly Dastur, respondent No.12 made affidavit ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:55 ::: 260 wp_2890.18.j.doc dated 16.8.2018 on behalf of respondents No.10 to 12. On the same day, additional affidavit was filed by Shantaram Ganpat Dalvi, DGM (Civil) on behalf of respondent No.4. Reference is made to email dated 30.7.2018 by VJTI demanding specific data and relevant details for their study from respondent No.4. Respondent No.4 provided all the information demanded from it. VJTI conducted site inspections of Atash Behrams on 28.7.2018 and 4.8.2018. Inspection of the under-construction both up-line and down-line and also under-construction CST Metro Station was carried out. VJTI also conducted inspection of other buildings in the vicinity of Atash Behrams.
SUBMISSIONS OF THE PETITIONERS
171. In support of this Petition, Mr. Seervai submitted that METRO up tunnel, South-North, Mumbai passes under the two holiest Parsi fire temples. There are eight holiest fire temples all over the world. Out of eight holiest fire temples, six holiest fire temples are in India. Out of six holiest fire temples, four holiest ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:55 ::: 261 wp_2890.18.j.doc fire temples are in Mumbai. The Petition raises two-fold challenge. These two challenges are separate and distinct. The first challenge is primarily based on Article 25 of the Constitution of India, namely, Right to Freedom of Religion. The second challenge is as regards danger to the structural safety and integrity of two holiest fire temples in allowing the tunnel as also construction of Kalbadevi Metro Station. The activity of boring of the tunnel with controlled blasting has to be considered having regard to the fact that Hormasji Bomanji Wadia Atash Behram was constructed around 188 years ago and Zarthosti Anjuman Atash Behram was constructed around 122 years ago. Mr. Seervai submitted that respondent No.4 has agreed to shift the up tunnel alignment by 3.5. meters. If respondent No.4 is agreeable to shift 3.5 to 4 meters in addition to the agreed shifting of 3.5 meters alignment under the structure and the compound, the grievances raised by the petitioners will no longer survive.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:56 ::: 263 wp_2890.18.j.doc 148-150)
(ii) Letter dated 16.5.2018 addressed by Dr. Asa to the Principal Secretary-I, Urban Development Department, State of Maharashtra, Mantarlaya, Mumbai; (pages 151-153)
(iii) Affidavit dated 26.5.2018 made by Vada Dasturji Kaikhushroo N. Dastoor Meherjirana, in the capacity as one of the High Priests of Zoroastrian Parsi/Irani Community of India; (pages 156-158)
(iv) Affidavit dated 28.5.2018 made by Vada Dasturji Dr. Firoze M. Kotwal, one of the High Priests of Zoroastrian Parsi/Irani Community of India; (pages 159-161)
(v) Affidavit dated 26.5.2018 made by Vada Dasturji Cyrus Noshirwan Dastur, in the capacity as one of the High Priests of Zoroastrian Parsi/Irani Community of India; (pages 162-
163)
(vi) Affidavit dated 3.6.2018 made by Yazdi H. Desai, Chairman and Authorized Signatory of the Board of Trustees of the Bombay Parsi Punchayet stating therein that the Trustees agree with what stated in the letters dated 21.10.2017, 29.10.2017, 1.11.2017, 4.11.2017 and 6.4.2018. It is reiterated that the two Atash Behrams have been consecrated over a century ago after performing complex and elaborate rituals by ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:56 ::: 264 wp_2890.18.j.doc highly trained priests. These fire temples have a special spiritual and religious significance for individuals practicing and professing the Zoroastrian faith. If the tunnels of the proposed MML-3 are allowed to be constructed beneath the Atash Behrams, it would result in the complete desecration of the Atash Behrams and grievous hurt to the sentiments of the entire Zoroastrian community not just in India but around the world; (pages 164-165)
(vii) Affidavit dated 11.7.2018 made by Ervad (i.e. Priest) Dr. Parvez Minocher Bajan. In this affidavit, he has stated about the concept of Karsha (Yantra in Sanskrit), importance of Mother Earth, and that consecration of Atash Behram are an integral part of the Zoroastrian religion.
(viii) Article dated 27.2.1955 from "Parsi Avaz";
(ix) Writings about the Zoroastrian Religion and Ceremonies;
(x) Affidavit-in-rejoinder dated 11.7.2018 made by the petitioners.
(xi) Article "Zoroastrianism Ancient and Modern", written and published by Ervad Phiroze Shapurji Masani, Vakil, High Court, Late Fellow, Elphinstone College and Mulla Feeroze Avesta and Pahlavi Madressa, in 1917.
(xii) "Khordeh Avesta" (page-492) translated into English with Copious Explanatory Notes.
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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. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:56 ::: 266 wp_2890.18.j.doc ceremonies of the holy or consecrated house. The secluded places required for the purpose of performing inner liturgical services are marked by formation of boundary lines which are the karsha. The karsha is also intended to preserve the efficacy of the consecrated fire. The Karshas extend to and cover the entire premises of the Atash Behram. If a tunnel is allowed to pass under the Atash Behram premises it will amount to a breach of the Karshas which are the protective circuits protecting the sacred fires consecrated and enthroned within the Atash Behram premises.
174. Mr. Seervai invited our attention to the Article "The Religious Ceremonies and Customs of the Parsees", by Jivanji Jamshedji Modi, which deals with karsha or kasha. A karsha (Sanskrit karsha) from the root, "karesh" (Per. Kashidan, to draw) means "a trench or a furrow." The word has a technical meaning in Zoroastrian rituals. At times, sacred or consecrated ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:56 ::: 267 wp_2890.18.j.doc things or materials are to be kept, for the time being, within a limited space or enclosure, so that persons other than the officiating priests may not come into contact with them. The karshas are meant to limit the circle of pollution. A person who is considered to have been polluted or, to speak correctly, supposed to have been infected with an infectious disease, goes through his washings and baths, and the circles were originally intended to keep the infection confined within the limit, so that it may not spread. The furrows are supposed to be trenches which would prevent the polluted water from his infected body to run beyond that certain limit. The karsha that a corpse-bearer draws round about the corpse in the house before removing the body to the Towers is of a similar kind.
175. In the Article of "The Religious Ceremonies and Customs of the Parsees", by Jivanji Jamshedji Modi, it is stated that mose of these karshas are of a temporary kind, but, in the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:56 ::: 268 wp_2890.18.j.doc fire-temples, they are of a permanent kind. A karsha is generally known as a "pavi". Pav means sacred. So a pavi means a furrow which preserves the sacredness of the consecrated things or of the sacred ceremonies.
176. Even in "Khordeh Avesta" Kash" or "Furrows" is referred in the following terms :
"(4) In what way do the paths of the righteous and wicked (people) part as under (differ) (from each other) ?
Explanation :- Its significance is, what is the difference between the paths of the virtuous, religious people and the sinful people?) The (the Creator) Ahura Mazda spoke. If (any person) recites aloud My holy spell (and becomes) the memonzer or the reciter (of that Holy Spell), or whilst reciting draws Kash (or furrows), (that person) projects his own body from the attacks of the demons and drujas and from the path of wickedness)."
(6) (The Creator Ahura Mazda speaks) : I accept (the man who) draws three 'Kash' (or furrows) as the righteous man. I accept (the man who) draws six furrows as the righteous man. I accept (the man who) draws nine furrows as the perfectly righteous man.
Explanation :- In this paragraph there occurs a subject regarding the drawing of `Kash' (the furrows). One should understand that he should not remain at ease ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:56 ::: 269 wp_2890.18.j.doc after drawing the furrows only, but after this, certain ceremonies are enjoined to be performed, the details of which are not given here i.e. the act of operating the ceremony by drawing these furrows. Prior to performing the "Pav Mahel" ceremonies of the Zoroastrian Religion, a 'Kash' or a circle is drawn round the place where that ceremony is performed; its significance is that during the performance of the ceremony no pollution, impurity or filth can exercise its evil over the place."
177. Referring to the affidavit and Articles, Mr. Seervai submitted that what is stated in the Petition is not mere ipse dexit of the petitioners. It is supported by affidavits made by High Priests, Priests, old and new Articles written by the scholars. He reiterated that the case is not based under Article 26 of the Constitution of India.
178. Mr. Seervai has invited our attention to the affidavit- in-reply dated 26.6.2018 of Shantaram Ganpat Dalvi, DGM (Civil) of respondent No.4. Mr. Seervai commented upon paragraph-9 of the said affidavit. In paragraph-9, it is submitted that imaginary grievances are raised by the petitioners as also ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:57 ::: 270 wp_2890.18.j.doc the Petition raises imagined violations of the interests of the petitioners. He submitted that on a very important and serious aspect of religious matters, the affiant has used the language which is not befitting status of the 4 th respondent. In support of his submissions in respect of Article 25, Mr. Seervai relied upon following decisions :
[i] The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt1 and in particular paragraphs-17 to 20.
[ii] Sri Venkatamana Devaru Vs. The State of Mysore 2 and in particular paragraphs-16, 17 and 29.
[iii] Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay3 and in particular paragraphs-26 to 28, 33 and 48 of the majority view handed-down by K.C. Das Gupta, J.
[iv] Tilkayat Shri Govindlalji Maharaj Vs. State of Rajasthan4 and in particular paragraphs-55 to 58 thereof. [v] The Durgah Committee, Ajmer Vs. Syed Hussain Ali 5 and in particular paragraphs-5 to 7, 20, 22, 24, 33 and 37 thereof.
[vi] Seshammal Vs. State of Tamil Nadu6 and in particular 1 AIR 1954 SC 282 2 AIR 1958 SC 255 3 AIR 1962 SC 853 4 AIR 1963 SC 1638 5 AIR 1961 SC 1402 6 (1972) 2 SCC 11 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:57 ::: 271 wp_2890.18.j.doc paragraph-11 thereof.
[vii] Gulam Abbas Vs. State of Uttar Pradesh 7 and in particular paragraphs-8, 33 and 35 thereof. [viii] A.S. Narayana Deekshitulu Vs. State of A.P. 8 and in particular paragraphs-75, 85 to 88 and 90 thereof.
[ix] Commissioner of Police Vs. Acharya
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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:57 ::: 272 wp_2890.18.j.doc
180. Mr. Seervai submitted that the Preconstruction Building Condition Survey Report made by the contractor of respondent No.4 has classified H.B. Wadia Fire Temple as "Moderate (3)". The classification of the damage inspection is based on Table-1. Table deals with (1) "Damage Category" from "0" to "5", (2) "Degree of Damage", namely, "Negligible", "Very Slight", "Slight", "Moderate", "Severe" and "Very Severe" and (3) "Description of typical damage and likely form of repair for typical masonry buildings". In so far as the Damage Category-3 i.e. "Moderate", the description of typical damage and likely form of repair for typical masonry buildings is to the following effect :
"Building with Minor, sporadic spalled concrete.
Water seepage present."
181. Mr. Seervai has also invited our attention to the amended Petition and in particular paragraphs-23A and 23B ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:57 ::: 273 wp_2890.18.j.doc read with Exhibit-R at page-142L, which shows that the location of the proposed Kalbadevi Metro Station. He also invited our attention to Exhibit-B (page-555) to the affidavit of the petitioners dated 4.8.2018 in reply to the additional affidavit of respondent No.4 dated 23.7.2018. A perusal of Exhibit-B at Page-555, shows that "(A) SECTION" dealing with Up-Tunnel, Item No.8 of STAGE-2 thereof shows that "excavate rounds "101, 111 & 121 (top heading)" will be done by controlled blasting/rock breaker with immediate application of shotcrete. He submitted that this has to be connected with paragraphs-5 and 6 of the affidavit dated 16.7.2018 made by Shantaram Dalvi, DGM (Civil) of respondent No.4. The boring of tunnel by controlled blasting that run directly below the structure of 188 years old Atash Behrams. Mr. Seervai submitted that the damage that would be caused to the old fire temple buildings would be irreversible and there is a distinct possibility that there will be physical damage to the structure and the edifice of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:57 ::: 274 wp_2890.18.j.doc these two Atash Behrams which are heritage structures. The danger can happen either during the construction phase or even during the running of the metro trains directly under these heritage buildings over a period of time. Recently, a building named Jer Mahal Annexe, situate where Kalbadevi Road meets JSS Road, suffered significant damage which included collapsing of ceiling walls as a result of construction of the tunnels. He invited our attention to the newspaper report that appeared in "The Times of India" dated 23.4.2018 and the newspaper report that appeared in "The Indian Express" dated 23.4.2018. He also invited our attention to paragraph-3(e) of the affidavit-in- rejoinder dated 11.7.2018 filed on behalf of the petitioners in reply to the affidavit dated 26.6.2018 filed by the fourth respondent. In paragraph-3(e), it is contended that the collapse of Jer Mahal Annexe building (very near the Atash Behrams), was as a direct consequence of the underground construction. Employees of respondent No.4 were clearly seen propping up the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:57 ::: 275 wp_2890.18.j.doc Jer Mahal building few days before the collapse of Jer Mahal Annexe building as respondent No.4 was anticipating the damage to Jer Mahal as a result of the underground tunnel boring.
182. Mr. Seervai invited our attention to the order dated 25.7.2018. In paragraph-10 of that order, the Division Bench noted that admittedly the 4 th respondent did not have the benefit of an opinion of an independent agency of some repute on the question of the Metro Railway work causing damage as apprehended by the petitioners. In paragraph-12, after noting that if the apprehension expressed by the petitioners as regards the damage likely to be caused to the subject Atash Behrams turns out to be true, it will create an irreversible situation and this aspect is very crucial and relevant in the face of the challenge based on violation of the rights under Article 25 of the Constitution of India. Therefore, it is in the interest of both the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:57 ::: 276 wp_2890.18.j.doc petitioners and the respondents that an independent agency like VJTI after making a study submits a report to this Court. The report will be very relevant for considering the prayer for interim relief. The draft terms of reference agreed by and between the petitioners and the 4th respondent were taken on record and marked as Exhibit-R1 for identification. As per the draft terms of reference, this Court directed VJTI to examine the impact of the proposed Metro work (including tunnelling and construction of the proposed Kalbadevi station) both during its construction as well as operation of the Metro Rail:-
(a) On the structural safety of the Wadiaji and Anjuman Atash Behram;
(b) On the water levels (including any contamination) in the wells situated within the Atash Behrams.
The petitioners / High Priests / Trustees of the Atash Behrams jointly and the fourth respondent were permitted to make submissions in this regard before the VJTI. VJTI was to ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 277 wp_2890.18.j.doc submit its report in sealed envelope within 10 days from the date thereof.
183. Mr. Seervai submitted that in pursuance of the order dated 25.7.2018, VJTI submitted the report dated 9.8.2018. VJTI solely relied upon the data prepared and supplied by respondent No.4. Thus the Court does not have an independent report. The report submitted by VJTI is not an independent report. He has invited our attention to the affidavit dated 13.8.2018 made on behalf of the petitioners in response to the report of VJTI dated 9.8.2018 and in particular paragraph-3 Exhibit-2 (list of annexures to VJTI's report dated 9.8.2018). He submitted that VJTI ignored the written submission of the petitioners as also the report of Hafeez Contractor, an expert engaged by the petitioners. He also invited our attention to paragraphs-5 to 7, 9 to 11, paragraph-8.2 dealing with "Vibration ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 278 wp_2890.18.j.doc Analysis" as also paragraphs-8.2.2 to to 8.2.4 of the VJTI's report dated 9.8.2018. He submitted that VJTI ignored the fact of controlled blasting which is to take place just 5 meters away from Atash Behram. Annexure-VII of the VJTI's report deals with "vibration analysis due to controlled blasting". The analysis made by VJTI is not independent analysis. The analysis is based on the data furnished by respondent No.4.
184. Mr. Seervai invited our attention to paragraph-5 of the report dealing with "external inspection of other buildings and roads in the vicinity of Atash Behram structures". It sets out that the building structures within the zone of influence of Metro construction work are being monitored by respondent No.4 for change in crack-width, settlement, tilt and vibration. The data provided by respondent No.4 from 7.5.2018 to 30.7.2018 indicated that these parameters were within the permissible design limits ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 279 wp_2890.18.j.doc prescribed by respondent No.4 (Annexure-IV). He invited our attention to the table in Annexure-VII dealing with "Vibration at ground surface above Station Box (Excavation Edge)" and the column of depth of controlled blast location from ground surface (meters 12 to 25), "Energy generated at source (Joules)" and "Peak Particle Velocity (PPV) transmitted (mm/sec). Below the said table, the note is to the following effect :
"Note : At a depth of 12 to 15 m from ground level, weathered rock of Grade III is expected based on the Geological conditions and hence less charge is required/adopted for breaking the rock."
185. Mr. Seervai submitted that in the first place, the data was supplied by respondent No.4. Secondly, according to VJTI, PPV is below 2.54 mm/sec which is a false and mischievous report. The table has to be read along with Item-7 of VJTI's report. Item-7 deals with "General Geology of the Strata". It sets out that respondent No.4 has carried out geotechnical investigations to identify the different layers of strata, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 280 wp_2890.18.j.doc quality/grade of soil/rock in each layer, depth of water table and other geotechnical parameters. With reference to Bore Hole SDH-07 (Annexure-V) which was drilled in front of Wadiaji Atash Behram referred from geotechnical report submitted by respondent No.4 the strata below ground consists of following layers :
1) Layer I - It is dark grey to Sandy Gravel extended up to 7 m from ground surface. It comprises of layers of similar deposits. The soil consists of Gravel (7%), Sand (87%), Fines (6%).
2) Layer II - Highly weathered to moderately weathered rock classified as Grade IV and II (as per IS 4464) below sandy layer from 7 to 11 m.
3) Layer III - This layer extends from11 m to 30 m (bore hold is terminated at 3) m). In the top portion of this layer slightly weathered to fresh basalt is encountered and classified as Grade II to I as per IS 4464.
186. As against this, the note appended below the table, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 281 wp_2890.18.j.doc shows that at a depth of 12 to 15 meters from ground level, weathered rock of Grade III is expected. This is clearly contrary to clause-3 of Item-7 of the report made by VJTI itself. In other words, the hardest rock is found in Grade-II/Grade-I as against Grade-III as reflected in the note below the table. This has to be compared with Annexure-V to the report. In particular, the column of "Description" and the column of "Weathering Grade (WG)" shows that from 9.5 meters to 11 meters, the weathering Grade is "II" and thereafter from 11 meter to 17 meters Grade "I" rock is found. Thus, the PPV gradings in the Table (page-824) given by VJTI below 2.54 is falsified by their own report Item-7 clause (iii) read with page-829 of Annexure-V.
187. Mr. Seervai has invited our attention to paragraph-11 of the affidavit of the petitioners dated 13.8.2018 in response to the report of VJTI dated 9.8.2018 where this aspect is dealt ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 282 wp_2890.18.j.doc with. The very foundation of PPV is destroyed by the report prepared by VJTI. The report of VJTI is doctored by respondent No.4 and amounts to misleading the Court. In particular he invited our attention to paragraphs-11(a), (c), (d) and (e) of that affidavit. Mr. Seervai invited our attention to the additional affidavit dated 16.8.2018 made by Shantaram Dalvi, DGM (Civil) of respondent No.4 and in particular paragraphs-6(c) and (d) thereof. Respondent No.4 has not dealt with the contentions raised by the petitioners in their affidavit dated 13.8.2018. The contention raised in paragraph-6(d) of the additional affidavit dated 16.8.2018 to the effect "I say that energy generated during controlled blasting depends on the quantity of detonator used and the quantity will be limited so as to not exceed 2800 Joules", to say the least is outrageous.
188. Mr. Seervai has invited our attention to Article ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 283 wp_2890.18.j.doc "Zoroastrianism Ancient and Modern", written and published by Ervad Phiroze Shapurji Masani, Vakil, High Court, in 1917, where it is set out that water of springs or wells, etc. taken in the Jashan ceremony are employed so as to receive best magno- electric currents issuing from them. Water has those five hydro-electrical magnetic forces, namely, Adu-fradho, Vanthwo- fradho, Gaetho-fradho, Khshaeto-fradho, Danghu-fradho and all these Fradho or hydro-electric forces have the best natural efficiency, if the water is natural i.e. derived from running streams. Mr. Seervai submitted that in the Zoroastrian religion, only pure water of wells or springs is strictly recommended for use in all Zoroastrian rituals, and the pure running water of wells or springs which is exposed to the visible and dark rays of the sun all the day has its Fradho naturally in a very high order of efficiency and activity. Hydro-electrical magnetic forces have the best natural efficiency if the water is natural i.e. derived from running streams. The water from pipes is not used in the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:58 ::: 284 wp_2890.18.j.doc ritual ceremonies performed in Zoroastrian religion. He has invited our attention to the orders dated 23.5.2018 and 25.7.2018 passed by the Division Bench of this Court.
189. Mr. Seervai has invited our attention to item-10.1 of VJTI report dated 9.8.2018 dealing with "Monitoring of water levels in the wells and piezometers" and in particular item-10.3. He submitted that respondent No.4 has already agreed to shift the alignment of up-tunnel by 3.5. meters. If they agree to further shift the alignment by 4 meters i.e. in all 7.5 meters of up tunnel track that will take the tunnel and railway track outside both Atash Behrams then the grievances of the petitioners will not survive and will be redressed. He, therefore, submitted that the reliefs claimed by and on behalf of the petitioners may be granted.
SUBMISSIONS OF RESPONDENTS NO.5 TO 12 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:59 :::
285 wp_2890.18.j.doc SUPPORTING PETITIONERS
190. Appearing on behalf of supporting respondents No.5 to 12 trustees, Mr. Devtire submitted that the Petition raises two aspects, namely, the religious aspect and physical damage to the structural stability of two Atash Behrams. The stand taken by the petitioners and the supporting respondents is not paranoid. They have reasonable apprehension as regards likelihood of the impact of tunneling up-tunnel below the Atash Behrams and construction of Kalbadevi Metro Station on the structural stability of Atash Behrams. Respondents No.5 to 12 are acting in a reasonable manner. The consecration ceremonies are not possible. He submitted that the residential block viz Wadia building on the Northern side of Atash Behram developed crack while the work was going on down-line. On 11.7.2018, while the work was in progress one of the residents found separation crack. On 14.7.2018, the down-line crossed this area. He submitted that the Repair Board had already declared the rear portion in a ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:59 ::: 286 wp_2890.18.j.doc dilapidated condition in the year 2015. Ultimately because of the work of the down-tunnel, the rear portion was actually demolished. The conclusions in VJTI's report dated 9.8.2018 did not deal with this aspect. There is no monitoring about the huge crack. He invited our attention to the affidavit dated 4.8.2018 made by petitioner No.1 and in particular paragraphs-2 to 4 thereof which has highlighted this aspect. These paragraphs are to be read with paragraph-9 of the affidavit dated 16.7.2018 made by respondent No.4 (page-536C). He also invited our attention to the report dated 25.7.2018 made by Grace Consultants (page-548F) and in particular item-3 thereof. He invited our attention to the affidavit of Hosi Daly Dastur (respondent No.12) dated 8.8.2018 (page-565) and in particular paragraphs-3 and 4 thereof.
191. In paragraph-5 of the report of VJTI it is specifically stated that Wadia Trust building situate on the North side of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:59 ::: 287 wp_2890.18.j.doc Wadiaji Atash Behram and abutting JSS Road shows separation between two parts of the building. Prima facie it appears that these two portions have been constructed on different period of time and apparently there is no structural connectivity between these two parts. Since this gap is not being monitored, the widening of gap cannot be commented upon whether it is due to tunnelling or any other activities. This is nothing but total non-application of mind on the part of VJTI.
192. Mr. Devtire invited our attention to paragraph-18 of the affidavit dated 13.8.2018 made by the petitioners as also paragraphs-19, 21 to 23 of the additional affidavit dated 16.8.2018 of Shantaram Dalvi, DGM (Civil) on behalf of respondent No.4. He submitted that Karsha is to be maintained and is essential part of religion.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:59 ::: 289 wp_2890.18.j.doc ritual ?, it was set out that a part of the answer lies in the fact that the tying of the kusti brings about a fulfilment of that which is "most furthering", through the rejection of all that is evil in the world. In other words, every time the kusti ritual is performed by a Zoroastrian, there is an unswerving commitment to promote the Will of Ahura Mazda. He submitted that the reliefs claimed by the petitioners may be granted.
SUBMISSIONS OF RESPONDENT NO.4
194. Mr. Aney submitted that the petitioners have basically challenged the MML-3 project on two grounds :
(i) Breach of Fundamental Right under Article 25; &
(ii) The issue concerning structural safety.
195. Mr. Aney submitted that the argument concerning the Fundamental Rights under Article 25 can be considered in three parts :
::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:59 :::
290 wp_2890.18.j.doc (1) The basis for assumption of the existence of Fundamental Rights.
(2) The practices which are essential and integral part of the religion, & (3) Fundamental Rights versus other Rights.
196. Mr. Aney submitted that the petitioners contend that the building and operation of the Metro Rail is in violation of their Fundamental Right to freely profess, practice and propagate their religion under Article 25. The petitioners did not complain violation of Article 26, namely, the Fundamental Right to manage their religious affairs. This is an attempt on the part of the petitioners to avoid several decisions of the Apex Court, which while dealing with the Right under Article 26 spell out the limitations and requirements of the larger right to Freedom of Religion.
197. Mr. Aney submitted that even if Article 25 is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:59 ::: 291 wp_2890.18.j.doc considered in isolation, it must be remembered that it forms a part of the scheme under sub-chapter headed "Right to Freedom of Religion", which includes Articles 25, 26, 27 and 28. Reading Article 25 in its proper context would indicate that according to the Apex Court, not all religious rights can claim a constitutional protection, which is extended only to essential religious practices. The wide proposition that all religious practices were protected by Article 25 as laid down in Shirur Matt's1 case has been significantly qualified to extend to essential religious practices and laid down tests to identify them. The petitioners submission that its right under Article 25 must prevail under all situations is, therefore, incorrect.
198. In support of this proposition, he relied upon following decisions :
a) Shirur Mutt's1 case and in particular paragraphs-
18, 19, 20 and 23 thereof.
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:38:59 ::: 293 wp_2890.18.j.doc
India16 and in particular paragraph-21 onwards. He submitted that the petitioners have not challenged the decision making process followed by respondent No.4.
l) Haresh M. Jagtiani Vs. Union of India 17 and in particular paragraph-139 thereof.
m) Dr. Noorjehan Safia Niaz Vs. State of Maharashtra18 and in particular paragraphs-35, 37, 39 and 40 thereof.
n) Shayara Bano Vs. Union of India19 and in particular paragraphs-25, 26, 53 and 54 thereof. He submitted that in the facts and circumstances of the present case, Article 25 is not attracted. At the highest the petitioners have asserted the Right to Property.
199. Mr. Aney submitted that the language of Article 25(1) indicates that it is subject to "other provisions of this Part". This would naturally include Article 26 as well. Article 26 does not contain any such injunction. It follows that while interpreting the extent of the freedom contained in Article 25, the meaning has to be given as indicated by the Apex Court decisions. Thus, 16 AIR 2017 ALLAHABAD 143 17 2016 SCC OnLine Bom 2600 18 (2016) SCC OnLine Bom 5394 19 (2017) 9 SCC 1 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:00 ::: 294 wp_2890.18.j.doc Article 25 will have to be read subject to other provisions of Part III of the Constitution, which would include not only Article 26, but such other Articles viz Articles 14, 15(2) to (4), 16(2), 17, 21, 21A, 23 and 26. Thus, in order to interpret Article 25, and even otherwise, it would be necessary to employ the doctrine of Harmonious Construction keeping in mind that all rights under the Constitution have to be given their proper function. In order to avoid any interpretation that may cause conflict between two sets of Fundamental Rights, the petitioners' right under Article 25 would have to be juxtaposed to the rights of all other citizens found in Articles 14, 15(2) to (4), 16 (2), 17, 21, 21A, 23 and 26. The petitioners right under Article 25 also needs to be considered in the light of Directive Principles in Articles 37, 42, 47, 48A and Fundamental Duties 51A(h). A proper interpretation of all these provisions indicates that any demand of the petitioners for enforcement of their Fundamental Right under Article 25 must be balanced against the rights of the citizens at large. The ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:00 ::: 295 wp_2890.18.j.doc citizens have access to the benefits and conveniences of the city, as also to live a life of dignity, work in comfortable environment, and partake in the wealth of the city. The State has a constitutional obligation to ensure that the citizen is not deprived of these benefits and conveniences. Any right of the petitioners to practice of their religion cannot be to the negation of the aforementioned rights of citizens. In support of this proposition, he relied upon following decisions:
(a) Acharya's12 case and in particular paragraphs-25, 30 & 31 thereof;
(b) Goa Foundation Vs. Konkan Railway Corporation and in particular paragraphs-1, 2, 6, 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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:00 ::: 296 wp_2890.18.j.doc and 65 thereof;
(g) G. Sundarrajan Vs. Union of India24 and in particular paragraphs-88, 89, 124, 198 to 206, 207 to 2011 and 240 thereof;
(h) Chenab Textile Mills Kathua Vs. Sat Paul 25 and in particular paragraphs-25 and 26 thereof.
(i) Khursheed's15 case and in particular paragraph-13 thereof;
(j) Subramaniam Swamy Vs. Union of India26 and in particular paragraphs-136 to 144 thereof;
200. Mr. Aney submitted that the exercise of balancing seemingly conflicting rights also calls for the application of the doctrine of proportionality. The doctrine recognizes that no rights are absolute, and ends of justice require attribution of proper proportion to different rights so as to give them balanced existence. In support of this proposition, he relied upon following decisions :
(a) Modern Dental College and Research Centre Vs. State of M.P.27 and in particular paragraphs-59 to 70 thereof;
24 (2013) 6 SCC 620 25 LPAOW No.56/2013 26 (2016) 7 SCC 221 27 (2016) 7 SCC 353 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:00 ::: 297 wp_2890.18.j.doc
(b) Advocates' Forum for Social Justice Vs. State of Tamil Nadu28 and in particular paragraphs-18.2 to 18.7 thereof;
(c) Binoy Vishwam29 and in particular paragraphs-
122 to 135 thereof;
201. Mr. Aney submitted that the fourth respondent does not accept the sweeping statements of the petitioners that their Fundamental Right under Article 25 is affected by the construction of the Metro Tunnel underneath the Atash Behrams. He submitted that it is for the petitioners to first establish that their Fundamental Rights under Article 25 are affected by the building and operation of the Metro Rail. The petitioners justify their conclusion based on the following arguments :
(a) There are three grades of sacred fires: (i) the sacred fire of Atash Behram, which is of the highest grade; (ii) the sacred fire of the Atash Adaran; and (iii) the sacred fire of Atash Dadgah. The concerned Atash Behrams house all three forms of fire. (see 28 2016-5-L.W. 97 29 (2017) 7 SCC 59 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:00 ::: 298 wp_2890.18.j.doc page-6, para-7)
(b) The entire structure of the two Atash Behram which house the sacred fire is a composite whole and is consecrated. (see page-6, para-9). The sacred precinct of Atash Behram is divided into three main parts. Innermost part is the sanctum sanctorum.
Second part is the inner and outer sanctorum where prayers are offered. Third part extends till the compound wall. (see page-
507)
(c) Additionally, the Karshas also indicate a protective consecrated area not only around the sacred fire, but also around the entire premises of two Atash Behrams. (see page-8, para-11)
(d) It is a belief of the community that there is a constant requirement for the sacred fire of the Atash Behrams to be connected with mother earth. (see page-6, para-9)
(e) An electromagnetic or geomagnetic field is generated in the core of the earth and is connected with the sacred fire in the Atash through waves and vibrations. If a tunnel is dug or MML-3 is operated under the premises of Atash Behrams, the spiritual circuits will be breached and negative forces will attack holy fire, thus diminishing its spiritual powers. (see pages-8 & 9, paras-12 & 13)
202. Mr. Aney submitted that except for proposition (a) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:00 ::: 299 wp_2890.18.j.doc above, the fourth respondent, in its reply affidavit has disputed the propositions (b) and (c) above as not being supported by facts on record. Respondent No.4 has also disputed the propositions
(d) and (e) above as being matters of belief which do not have anything to do with Zoroastrian religion or faith. He submitted that in order to bring their case within the ambit of the right guaranteed by Article 25, the petitioners will have to show that the members of Zoroastrian faith in fact 'profess, practice, propagate' these beliefs. Even if they believe in propositions (b),
(c), (d) and (e) above, they would not only have to establish the fact of their belief and that it was widespread amongst the Zoroastrians, but, also show through cogent evidence that this belief was integral to Zoroastrianism. Unless each of these propositions is established, mere faith or belief of the Parsi community would not render these beliefs for protection under Article 25.
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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).::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:00 :::
301 wp_2890.18.j.doc B. The affidavit of Mr. Ervad Dr. Parvez Minocher Bajan dated 11.7.2018 (page-497 in rejoinder), a qualified priest and scholar. He referred to the following points in the affidavit:
(i) Concept of Karshas, importance of mother Earth, consecration of Atash Behram are integral part of Zoroastrianism. (see para-3)
(ii) The land where Atash Behram is situated is to be dug up and the rays of the sun should continuously fall upon such area. (see para-4)
(iii) The land of Atash Behram is demarcated from surrounding environment by karsha. A Karsha is a demarcation drawn on the physical ground in order to alienate a piece of land from its immediate surroundings and wherever such Karsha are drawn on physical ground, it created an invisible wall of self-protection for the objects enclosed within the karsha. (see para-5)
(iv) There are nine Karshas drawn, that provide the invisible talismanic vigil within the precincts of Atash Behram.
Outermost Karsha provide the invisible vigil within the precincts of Atash Behram. (see para-6)
(v) The construction of the Metro tunnel underneath the structures will defile or desecrate the structures. C. An Article dated 27.2.1955 in "Parsi Avaz" (page-503)
(i) The land where Atash Behram is built should be hallowed. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 :::
302 wp_2890.18.j.doc It should be naturally sanctified for years together. Such ground needs to be dug-up and the purifying rays of sun should fall upon the area to cleanse the earth. Mr. Aney submitted that the petitioners did not disclose source. It is not clear from where the petitioners have got this material. The petitioners have not shown that these beliefs are integral part of religion. He submitted that the proposed up- tunnel is not causing any obstruction. No material is produced by the petitioners to substantiate that the spiritual force etc. prohibits under-ground tunnel. At the highest, the petitioners' case that the land of Atash Behram is sanctified is merely an idea, thought or belief. (see page-503)
(ii) The land that is not pure, or is contaminated with any form of putridity that has not yet been cleansed out, is not conducive for divine functioning. (see page-504)
(iii) The sacred precinct of Atash Behram is divided into three main parts. Innermost part is the sanctum sanctorum. Second part is the inner and outer sanctorum where prayers are offered. Third part extends till the compound wall. (see page-507) D. Writings about Zoroastrian Religion and Ceremonies (pages-512 to
514): The said Karsha could not be drawn on hollow surfaces, because if any movement were to take place below the karsha, then it would vitiate the religious performance and sanctity of ceremony. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 :::
303 wp_2890.18.j.doc Hence, no basement can be made in a religious structure used for religious ceremonies. (pages-512 to 514) E. Zoroastrianism - Ancient and Modern (pages-517 to 518) : The fundamental laws of nature taught by Zoroaster and Avesta include (i) Staota i.e. law of vibrations or subtle colours produced by Vibrations of Motion and Sound; (ii) Khastra i.e. the law of the Thermo-Electro-Magnetic Forces and currents working throughout the visible and unseen realms, in indefinitely various forms of electricity or magnetism.
F. Affidavit in rejoinder of the petitioners (pages-413 to 533) : The petitioners relied upon the following submissions in their rejoinder.
(i) Paragraphs-21 to 28 : These paragraphs concern the significance of fire in Zoroastrian religion and that the holy fire is installed in a separated and isolated piece of land which is required to be secluded from outside intervention and external influence.
(ii) Paragraphs-29 to 34 : These paragraphs concern the significance of karshas or spiritual circuits which surround the fire and act as protective barrier. Hence, the place where the Atash Behram is consecrated, is isolated and ritualistically purified and therefore cannot be interrupted or violated by passing of tunnel underneath the structures.
(iii) Paragraphs-41 and 43 : In these paragraphs, the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 ::: 304 wp_2890.18.j.doc petitioners contend that as per the long-standing customs and traditions of the Zoroastrian Community, there is a requirement that the holy fire to be connected with mother Earth, and such connection be uninterrupted. One can never perform inner liturgical ceremonies on an elevated place. However, if a tunnel is made beneath the structure it would be considered to be on an elevated level and the connection with the earth would be lost. G. Khordeh Avesta (pages-492 to 496) : Verse 4, 5 and 6 show the importance of Karshas in Zoroastrian culture.
204. Mr. Aney submitted that the respondents deny the above contentions. They do not admit that the petitioners have proved these facts. He submitted that the burden is on the petitioners to not only prove and establish the fact of their belief and that it was widespread amongst the Zoroastrians, but also show through cogent evidence that this belief was integral to Zoroastrianism. The petitioners have failed to do so as is clear from the following facts and reasons :
(a) As to affidavits of four High Priests of the Zoraostrian Parsi / Irani Community (pages-148 to 161)
(i) Except for evidence in the form of their own statements in the aforementioned affidavits that as per religious ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 ::: 305 wp_2890.18.j.doc injunctions and customs, any construction underneath the Atash Behrams would disrupt the uninterrupted connection of the sacred fire and the structure with the Earth, and would breach the karshas surrounding the structures causing desecration of the Atash Behrams, the four High Priests have not produced any evidence (scriptures, religious texts etc.) in support of these assertions.
(ii) Although the petitioners have brought on record a letter dated 8.6.2018 (page-211 of the petitioners affidavit dated 13.6.2018) addressed by Vada Dasturji Khurshed Dastoor (High Priest), the said High Priest has not filed any affidavit on oath to support the contentions of the petitioners. Thus, it is not correct that all High Priests have unanimously stated on affidavit that construction of tunnel underneath the Atash Behram would lead to desecration / defilement of the structures. In any case the said letter does not prove the fact or their belief, or even that it was widespread.
(b) The affidavit of Mr. Ervad Dr. Parvez Minocher Bajan dated 11.7.2018 (page-497 in rejoinder):
(i) The concerned affidavit deals with the spiritual significance of a karsha but does not state anywhere that these karshas extend below the surface of the Earth.
(ii) Further no basis in terms of religious texts, etc. is shown to support the statement that if a tunnel passes underneath the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 ::: 306 wp_2890.18.j.doc Atash Behrams, it would lead to desecration of the structure.
(iii) The fourth respondent is not disputing that karsha have spiritual significance but contend that the petitioners have not shown any proof in sacred texts that these karshas extend beneath the earth's surface to the centre of the earth. The fourth respondent also denies that any such connection would be breached if the Metro Tunnel is constructed.
(c) An Article dated 27.2.1955 in "Parsi Avaz" :
(i) This Article also deals with the spiritual significance of a Karsha but does not state anywhere that these karshas extend underneath the structure or that such karshas would be breached if any construction activity is carried out underneath the structure.
(ii) In any case the document is an article written in a journal / paper for readership within the Zoroastrian community.
It is at best an expression of the author's ideas or beliefs. Without reference to some source in basic religious scriptures, it cannot be given any weight as evidence.
(d) Writings about Zoroastrian Religion and Ceremonies (page-512 to
514) :
(i) The document is the opinion of a High Priest and cannot be considered as an essential religious practice as it does not derive its basis from any religious texts or scriptures and no reference is made to any such text or scripture.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 ::: 308 wp_2890.18.j.doc that any construction underneath the surface of the Earth would breach such karsha.
(iii) Paragraphs-34 to 41 deal with the composite nature of the entire structure. The fourth respondent submitted that the only documents produced by the petitioners in support of such contention are an affidavit of a Parsi scholar (page-497) and an Article of the year 1955. These documents cannot be the basis of proving that the entire structure was consecrated.
(g) Khordeh Avesta (pages-492 to 496) :
The verses relied by the petitioners in Khordeh Avesta show the spiritual significance of a karsha which is not disputed by the fourth respondent. However, this text also does not demonstrate that these karshas extend beyond the surface of the Earth. On the contrary, this document shows that karshas are furrows drawn on the surface of the Earth to ensure that no pollution, impurity or filth enter the place where a ceremony is performed.
205. Mr. Aney submitted that the petitioners have failed to prove from the evidence adduced on record that the beliefs of the petitioners are integral to the very existence of Zoroastrian faith ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 :::
309 wp_2890.18.j.doc and are protected under Article 25 of the Constitution of India.
206. Mr. Aney has invited our attention to the affidavit dated 26.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) with respondent No.4. He has taken us through the implementation process of MML-3. He submitted that Mumbai Metro Master Plan was first prepared in the year 2004 and has been amended at network level from time to time based on the revised and updated implementation plans. The present project of MML-3: Colaba-Bandra-SEEPZ was formed by amalgamation of two lines of the original Masterplan; Line-3 (Colaba- Mahalaxmi-Bandra) and southern section (BKC-SEEPZ) of line-6 BKC-Airport-SEEPZ-Kanjur Marg. The Project Implementation of Metro Line-3; Colaba-Bandra-SEEPZ has been taken by the fourth respondent in the year 2010. Accordingly, the Detailed Project Report (DPR) was prepared by Rites in November, 2011. Notification dated 12.12.2011 was issued by the Managing ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:01 ::: 310 wp_2890.18.j.doc Director of respondent No.4 detailing therein that a Social and Environmental Impact Assessment Study as per JICA guidelines. In this regard the alignment and station locations were notified and suggestions/objections for the same were invited from concerned stakeholders in writing by respondent No.4. Important station locations as also details of the alignment were uploaded at www.mmrdamumbai.org. The project alignment plan was also displayed at following offices :
i. Transport & Communications Division, MMRDA Building, Bandra-Kurla Complex, Bandra (E), Mumbai - 400 051. ii. Deputy Director (Town Planning), Greater Mumbai, ENSA Hutment, E. Block, Azad Maidan, Mahapalika Marg, Mumbai-400 001.
iii. Chief Engineer (Development Plan), 4th floor, Annexe building, MCGM head office, Mahapalika Marg, Mumbai - 400 001.
iv. Collector (City), Mumbai City Collectorate, Old Custom House, Fort, Mumbai - 400 001.
v. Collector (Suburbs), New Administrative Building, Bandra Colony, Bandra (East), Mumbai - 400 051.
207. The project alignment and details were published in all prominent newspapers (in two languages) calling ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:02 ::: 311 wp_2890.18.j.doc for suggestions and objections from the public with one month notice. To ensure wide publicity and information, the plan was also published at various Government Offices (Deputy Director of Town Planning, Government of Maharashtra; Chief Engineer, Development Plan; MCGM; Collector Mumbai City; Collector Mumbai Suburbs; and MMRDA). Respondent No.4 has not received any written suggestions or objections in response to the notice. A public notice for that purpose was published on 5.4.2012 in prominent newspapers in two languages. Public consultation/hearing was conducted on 11.4.2012. A detailed presentation was made to the audience who attended the public hearing on 11.4.2012. He submitted that a proposal for project approval and funding was submitted to the Government of India through Government of Maharashtra. Proposal for implementing the project with JICA funding was submitted to the Government of Maharashtra in December, 2011. After approval, the State forwarded the proposal for implementing ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:02 ::: 312 wp_2890.18.j.doc with JICA funding to Government of India on 27.12.2011. The Government of India included the project in JICA rolling plan on 13.3.2012 whereby it is confirmed that JICA would consider financing the Project Funding. After following the due process, the Government of India, Ministry of Housing & Urban Affairs (erstwhile Ministry of Urban Development) issued approval on 18.7.2013 which stipulates that the project shall be implemented by respondent No.4 a Joint Venture Special Purpose Vehicle (JVSPV) with 50:50 equity participation by Government of India and Government of Maharashtra. Several JICA Missions (a delegation of Technical and Finance professionals and officers) visited Mumbai during 2011-2013. JICA followed the due process and confirmed to fund about 58% of project cost by Exchange of Notes between Prime Minister of India and Prime Minister of Japan on 29.5.2013. This was followed by loan negotiations and Signed Loan Agreement for Tranche-1 on 17.9.2013. Government of Maharashtra concurred the approval ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:02 ::: 313 wp_2890.18.j.doc by Government of India through a Cabinet Resolution to facilitate the project implementation with all the enabling and complementing provisions. The State Government's approval dated 3.3.2014 included all the enabling process, finance, works and lands.
208. Mr. Aney submitted that awaiting the approvals from Government of India and JICA, respondent No.4 appointed Interim Consultants (IC) to finalize the project alignment, preliminary designs, prepare Bid Documents (as per JICA procurement Guidelines) for Civil Works in seven packages. IC conducted various Engineering investigations including detailed topographic surveys, Geotechnical investigations, Building Condition Surveys etc., and finalized the Project Alignment (Vertical and Horizontal Alignment) construction methodology and packages including TBM launching shafts. The IC also ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:02 ::: 314 wp_2890.18.j.doc prepared detailed engineering plans for the tunnel and stations for the entire corridor. These structural plans were specific to the respective station locations. IC were group of AECOM Asia (Hong Kong), PADECO (Japan) and LBG Inc. (USA) International Engineering Consulting Companies of repute. Keeping in line with the international project implementation practices followed by JICA, respondent No.4 appointed General Consultants (GC) following the due process stipulated under JICA procurement Guidelines. The GC are group of AECOM Asia (Hong Kong), PADECO (Japan), LBG Inc. (USA) and EGIS Rail (France) International Engineering Consulting Companies of repute. The General Consultants is responsible to perform the functions of Engineer and responsible for the project completion and delivery as an operating Metro. The scope includes, due diligence, design approvals, quality assessment-quality control (QA-QC), project monitoring supervision etc.. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:02 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:02 ::: 316 wp_2890.18.j.doc Monitoring system etc. to ensure safe and sound implementation of the project The DDC of the contractors shall be responsible for complete design of all structures. A plan or design prepared by the DDC is required to be checked and vetted by the LDC before it is submitted for a clearance of the GC. Finally, a design or a plan duly cleared by LDC shall be reviewed and approved by the GC. GC is also responsible for all project implementation process and reports to respondent No.4 as per the pre-decided reporting system. Respondent No.4 is responsible for the project implementation through the instruments of GC and the contractor put in place. Respondent No.4 is responsible for the co-ordination with all stakeholders, be it, Government of India, Government of Maharashtra, Regulatory Authorities, Local Authorities or public etc.. Respondent No.4 is also responsible for awarding contracts arranging lands, rehabilitate project affected peoples and also to arrange finance for the project. Respondent No.4 would be operating the system after it is commissioned. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:03 :::
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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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:03 ::: 318 wp_2890.18.j.doc dealt with the issue concerning the structural safety. He submitted that the petitioners came with the case that Atash Behrams are endangered on account of the proposed up-tunnel below both Atash Behrams, on following grounds/contentions :
[A] That the incident of Jer Mahal Annexe clearly shows that the Atash Behram is in danger.
[B] That huge cracks developed in Wadia Building, right next to H.B. Wadiaji Atash Behram. It is also 188 years old construction and to which cracks are developed on 11.7.2018. This confirms, the apprehension of the petitioners.
[C] That similar incident at Chennai in respect of CSJ Wesley Tamil Aalayam (Arcot Lutheran Church) which was also 152 years old, confirms the apprehension of the petitioners.
[D] That the directions given by the Hon'ble Supreme Court in Jambhunath Temple Case (K. Guru Prasad Rao Vs. Karnataka, (2013) 8 SCC 418), have been grossly violated.
[E] That the report of VJTI, is not an independent investigation at all and is based upon the material supplied by respondent No.4 only and therefore is required to be discarded.
[F] That the "decision making process", adopted by respondent No.4, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:03 ::: 319 wp_2890.18.j.doc has been vitiated on account of not taking into consideration glaring relevant facts.
213. Insofar as contention [A], Mr. Anturkar submitted that there are two different buildings, namely, "Jer Mahal Building" and "Jer Mahal Annexe Building". This is evident from the assertions made in paragraph-14 of the Petition. The petitioners are creating confusion and are trying mislead Court by giving impression that the same building was damaged which was propped up and supported by the staff of the 4 th respondent. He submitted that the entire incident is explained in the affidavit-in-reply dated 26.7.2018 made by Shantaram Ganpat Dalvi, DGM (Civil). He submitted that the report submitted by Project Management Consultant (PMC) (page-229 of the petition) on 3.5.2018 completely brings out the facts. (see page-
230) under the captions "occurrence of incident" and "Tunneling Works". TBM-1 machine was stopped on 19.4.2018. Jer Mahal ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:03 ::: 320 wp_2890.18.j.doc Annexe incident took place on 21.4.2018 at 6:00 a.m. when TBM- 1 machine was not operating for the downtime maintenance. At that time TBM-1 machine was 116 meters away from Jer Mahal Annexe building. TBM-2 machine was stopped on 2.4.2018. Jer Mahal Annexe incident took place on 21.4.2018 at 6:00 a.m. At that time, TBM-2 machine was stopped for the downtime maintenance and was 385 meters away from Jer Mahal Annexe building. He reiterated that the petitioners are trying to confuse said issue as is evident from the affidavit of petitioner No1 Jamshed dated 11.7.2018 [pages-413/416(e)]. By creating this confusion, the petitioners are projecting as if the building which was supported 'Jer Mahal Building" was the same as "Jer Mahal Annexe Building". Lastly, he submitted that Jer Mahal Annexe building was categorized as "Severe" (see page-238), whereas the nearby Atash Behram is classified as "Moderate" by respondent No.4 and "Slight" by VJTI. He, therefore, submitted that there is no substance in contention (A) raised by the petitioners dealing ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:03 ::: 321 wp_2890.18.j.doc with the incident of Jer Mahal Annexe Building.
214. Insofar as contention [B] is concerned, Mr. Anturkar submitted that the number of old buildings were standing on the down tunnel and in between Wadia building and the town tunnel. Though those buildings are old still no sign of distress was observed. It is inconceivable that the so called vibration will affect only one building. As far back as on 21.7.2015 the warning was given by MBRRB that said building is in dilapidated condition (page-894).
215. Insofar as the contention [C] is concerned, Mr. Anturkar submitted that a news item is not an evidence. He relied upon following decisions:
(i) Samant N. Balakrishna Vs. George Fernandez30 and in particular paragraph-47 thereof.
30 AIR 1969 SC 1201 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:03 ::: 322 wp_2890.18.j.doc
(ii) Ketan K. Tirodkar Vs. Central Bureau of Investigations and another31.
216. Mr. Anturkar submitted that the news report published in "The Hindu" is a printed hear-say evidence. He further submitted that in respect of the soil composition of Chennai mentioned in the news item, which was shown as "Rocky & Sandy", whereas the very said item indicates that at New Delhi the soil was "quite rocky". Insofar as Mumbai soil composition is concerned, he invited our attention to the soil composition as per Annexure-V at pages-830-831 of the Petition, which shows that the compensation of soil in the area where the nearby Atash Behram is situate is "Moderately Strong slightly weathered Gray Basalt" (9.5 meters to 11.00 meters) and "Strong fresh Gray Basalt" (11.00 meters to 12.50 meters)
217. Insofar as the contention [D] based upon the decision 31 2016 SCC OnLine Bom 5954 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:03 ::: 323 wp_2890.18.j.doc of Apex Court in K. Guru Prasad Rao's 11 case is concerned, Mr. Anturkar submitted that the case is concerning protection of Jambhunath Temple. Jambhunath Temple is "protected monument" and was under the protection of Karanataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961. As against this Atash Behrams are not "protected monuments" within the meaning of the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960. He has invited our attention to the definition of the expressions "ancient monument" [Section 2(1)], "Power of the Government to declare Ancient Monuments to be Protected Monuments [Section 4], "Prohibited Area and Regulated Area"
[Section 2(j)], "Prohibition for Mining" [Rule 13] and submitted that these expressions clearly show that Jambhunath Temple being "Protected Monument" under the State Act, the ratio of said decision is not applicable to the present case. Jambhunath Temple's case was a case of "Wagon Blasting Method", whereas ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 :::
324 wp_2890.18.j.doc the present case is of "Controlled Blasting". Atash Behrams are "Heritage Buildings" as per Regulation 67 and are not "Protected Monuments". The case of Jambhunath Temple was the case of private mining leases and not project of public utility. He, therefore, submitted that the said decision is not applicable in the present case.
218. Insofar as the contention [E] based upon the report of VJTI is concerned, he submitted that by order dated 25.7.2018, the Division Bench of this Court directed that VJTI should "examine". The order no where says that VJTI should "investigate". The distinction between "investigate" and "examine" is absolutely clear and still the petitioners are trying to mislead the Court by contending that this Court had given directions to VJTI to investigate as is evident from the affidavit dated 13.8.2018 made by petitioner No.1 Jamshed (pages- 569/579). The petitioners never sought any directions from this ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 ::: 325 wp_2890.18.j.doc Court either on 25.7.2018 or on 6.8.2018 to VJTI to collect its own data and not to use the data of respondent No.4. The petitioners never raised objection nor made suggestion before VJTI that it should collect its own data and not to use the data supplied by respondent No.4. Even during the course of hearing, the petitioners did not raise any objection about the validity or genuineness of the data collected by respondent No.4. In the absence of any directions from this Court and in the absence of any request from the petitioners, at the most it was entirely in the discretion of VJTI as an Expert Commissioners, either (a) to rely upon the data collected by respondent No.4 when the genuineness of the data was not challenged by the petitioners before it, or (b) to collect data by itself conducting tests, or (c) to adopt both the methods mentioned (a) and (b) above. He submitted that no fault can be found with the expert, because the expert has opted for one of the permissible courses. That apart there are no allegations of malafides or bias against VJTI. In any ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 ::: 326 wp_2890.18.j.doc case, the decision of respondent No.4 is not based upon VJTI report. The decision making process of the 4th respondent was independent of VJTI report. The report of VJTI was required by the Court and not by the 4th respondent. Even if the report is discarded, the discarding will not affect the decision making process of respondent No.4 which will stand on its own footing. At the most the report of VJTI is for the purpose of Order XXVI of Code of Civil Procedure, 1908 (for short, 'C.P.C.').
219. Insofar as the contention [F] dealing with the decision making process adopted by respondent No.4 is concerned, Mr. Anturkar submitted that basically the petitioners have not at all challenged the decision making process of the 4 th respondent. He invited our attention to ground (w) of the Petition, which is to the following effect :
"W. Because as far as the Petitioners are aware, the Respondent Nos.1 to 4 have failed to conduct any study ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 ::: 327 wp_2890.18.j.doc in relation of the structural safety of the Atash Behrams in connection with the proposed construction or any study on the impact of the proposed construction on the wells in the Atash Behram premises."
220. As against this, respondent No.4 relied upon:
(a) The report of Maple General Consultant, namely, BCS report. (pages-232 to 261)
(b) The report of the Committee of five Directors of respondent No.4 formed as per the directions of this Court dated 23.5.2018. (page-272)
(c) Annexure-V indicating sampling soil and rocks and the detonator, which may be required to break such soil and rock.
(d) The notification dated 12.12.2011 inviting objections/suggestions from the public at large. (page-411)
(e) The further affidavit-in-reply dated 16.7.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) on behalf of respondent No.4 and in particular paragraphs-4 to 7 thereof, by which realignment to some extent is made. (page-535B)
(f) The reasons given as to why complete realignment as required by the petitioners cannot be made. [page-536C, paragraph-10(a) to (d)] ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 ::: 328 wp_2890.18.j.doc
(g) Assurance of respondent No.4 to the effect that they are ready to abide by the recommendations made by VJTI. (page-602)
(h) Assurance of respondent No.4 that in order to keep the energy generated within the limits of 2800 Joules, respondent No.4 will restrict the quantity of detonator irrespective of the quality of the soil and rock as per Annexure-V, mentioned more particularly in respect of the area adjacent to the concerned Atash Behram.
221. Mr. Anturkar submitted that every step has been taken by respondent No.4 and even during pendency of this Petition respondent No.4 has agreed for the limited realignment which shows fairness on the part of respondent No.4. Even during pendency of the Petition, respondent No.4 has always shown readiness and willingness to consider the proposal(s) of the petitioners. He, however, hastened to add that it is necessary to clarify that this will be subject to only two things
(a) the ultimate decision about the realignment will be that of respondent No.4 and not of the expert consulted by the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 ::: 329 wp_2890.18.j.doc petitioners and (b) respondent No.4 under, no circumstance, can compromise with the safety of the passengers, who will be using Kalbadevi Metro Station, which will be one of the most busiest Metro Stations in future.
222. Mr. Anturkar submitted that on 12.12.2011 notification was issued inviting suggestions / objections in regard to the alignment and station locations from concerned stakeholders in writing by respondent No.4. The details of the alignment and station locations including Kalbadevi Metro Station were uploaded at www.mmrdamumbai.org. The project alignment plan was also displayed at following offices:
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 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 ::: 330 wp_2890.18.j.doc House, Fort, Mumbai - 400 001.
v. Collector (Suburbs), New Administrative Building, Bandra Colony, Bandra (East), Mumbai - 400 051.
223. Respondent No.4 had undertaken a Social and Environmental Impact Assessment Study as per JICA guidelines. In this regard the alignment and station locations were notified and suggestions/objections for the same were invited from concerned stakeholders in writing by respondent No.4. He submitted that the petitioners did not even file any suggestion/objection in pursuance of the notification. He invited our attention to paragraphs-4 to 7 of the affidavit dated 16.7.2018 as also paragraph-6(f) of the additional affidavit dated 16.8.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) on behalf of respondent No.4. He invited our attention to the conclusions drawn and recommendations made by VJTI. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:04 :::
331 wp_2890.18.j.doc
224. Mr. Anturkar submitted that the petitioners have to establish the case under Article 25 of the Constitution of India. Article 25 is subject to Part III of the Constitution, namely, other Fundamental Rights, such as, Articles 19, 21 etc.. He submitted that the phrase "subject to other provisions of this Part" also appears in Article 301. In Article 312 the expression that appears is "subject to the other provisions of this Chapter". He invited our attention to Articles 15, 16 and 19 of the Constitution vis-a- vis Article 25.
225. Mr. Anturkar relied upon following decisions :
[i] N.D. Jayal vs. Union of India (UOI) 32 and in particular paragraph-23, 24 and 26 thereof;
[ii] Jindal Stainless Ltd. Vs. State of Haryana 33 and in particular paragraphs-198 and 199 thereof, to contend that the provisions of Article 25 are subservient to other provisions of Part III of the Constitution.
32 (2004) 9 SCC 362 33 (2017) 12 SCC 1 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 ::: 332 wp_2890.18.j.doc [iii] Amit Vishnupant Khot Vs. Union of India34 and in particular paragraph-13 to contend that the Court should find out as to how the greater interest should be subserved and for that purpose a balance should be struck and harmony should be maintained between several interests.
226. Insofar as the proposal submitted by the petitioners for realignment of up-tunnel on 22.9.2018 is concerned, Mr. Anturkar submitted that various technical, architectural and designing elements are required to be taken into account while considering the alternate proposals of the petitioners. The proposed Kalbadevi Metro Station has been designed after careful and detailed planning. It is to serve 2,19,744 (station load including boarding and alighting) per day by 2031. The station has to be compliant with all safety protocols considering that it is to serve a huge volume of people.
34 2008 (3) Mh.L.J. 257 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 ::: 333 wp_2890.18.j.doc
227. Insofar as the speed of tunneling work and monitoring process of 4th respondent is concerned, he submitted that appropriate speed for the safe operation of a TBM machine is 10 meters per day. Considering that TBM machine for the Up-Line is 100 meters away from the Anjuman Atash Behram and 200 meters away from the Wadiaji Atash Behram, it would take approximately 10 days for TBM machine to reach boundary of Anjuman Atash Behram and approximately 20 days for TBM machine to reach boundary of Wadiaji Atash Behram from its current location. He submitted that it is possible to reduce the speed of TBM machine to the extent possible as per encountered geological strata. However, such reduction of speed increases the likelihood of squeezing of the ground, which may result in settlement of the ground at surface level. Respondent No.4 has set up a detailed protocol for monitoring various structures involving installation of various monitoring devices, such as, Ground Settlement Markers, Building Settlement Markers, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 ::: 334 wp_2890.18.j.doc Crack Meters, Building Tilt Meters, Building Vibration Monitors, Bi-reflex Targets, Optical Targets etc. He submitted that following monitoring process are being implemented and shall be implemented for the concerned Atash Behrams:
a. Currently the Atash Behrams are being monitored for settlement markers installed on the outer walls and pavements in front of the Atash Behrams.
b. Vibrations will be monitored using vibration sensors on a 24x7 basis.
c. Tilt monitoring will be done by tilt plates which are installed on the external wall of Wadiaji Atash Behram.
d. Any existing cracks on the outer wall can be monitored by installing crack meters and any existing cracks inside the structure can be monitored by installation of crack meters inside the structure, if such permission is granted.
228. Mr. Anturkar submitted that a detailed system for monitoring is in place with respect to monitoring of structures as under :
a. A team of four engineers comprising of Instrumentation and Monitoring Engineer is designated for monitoring the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 :::
335 wp_2890.18.j.doc structures.
b. There are defined trigger levels for the structures within the influence zone of metro construction works viz. i. Alert Level : Set as 0.5 times the serviceability limit value defined for the monitored structure. ii. Action Level : Set as 0.8 times the serviceability limit value defined for the monitored structure. iii. Alert Level : Set at the serviceability limit value defined for the monitored structure.
c. Daily instrumentation and monitoring report is sent to the officials of the Answering Respondent, the supervision team of Contractors, the officials of the Detailed Design Consultant and the General Consultant.
d. The officials of the Contractors and General Consultants are highly qualified in their respective technical fields and include Doctorates in Geology, Post Graduates in Civil Engineering and Mechanical Engineering etc.
229. Mr. Anturkar submitted that the Down Line Tunnel has reached till Girgaum and has cross 92 structures. Out of these structures, 04 structures are classified as "Very Severe", 30 structures are classified as "Severe" and 37 structures are ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 ::: 336 wp_2890.18.j.doc classified as "Moderate" and no damage is caused to any of these structures.
230. Mr. Anturkar submitted that "Controlled Blasting" is a method of controlled usage of explosives and blasting accessories in appropriately aligned and spaced drill hole. The energy and consequent vibrations generated from such blasting method depend on the quantity of charge/detonator used for such blasting. If lesser quantity of charge is used, the amount of energy and consequent vibration generated from such charge can be limited to prefixed limits. As per the British Standards, the permissible PPV at Existing Building Structure (EBS) for Heritage Structure is 5 mm/second. As per the American Association of Highway and Transportation Officials (AASHTO) Guidelines, the permissible PPV at EBS for Heritage Structure is 2.54 mm/second. He submitted that if the energy generated for ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 ::: 337 wp_2890.18.j.doc controlled blasting at a depth of 12 meters, is taken as 2800 Joules, the PPV at the Wadiaji structure would be 1.965 mm/second. The energy generated from controlled blasting can be limited by using lesser charge. Respondent No.4 will ensure that the PPV generated from controlled blasting at the Wadiaji Atash Behram will not exceed 2.54 mm/second.
231. Mr. Anturkar submitted that VJTI has recommended additional safety measures, namely, a. Excavation for cut and cover at Kalbadevi station near the corner of Wadiaji Atash Behram shall be carried out by drilling line holes upto bottom for the plan area of 3 x 3 meters. Further excavation in remaining area shall be carried out by mechanical means or control blasting. The perforation (drilling holes) by line drilling will further reduce the vibration on Atash Behram buildings. b. Both the Atash Behrams should be closely monitored for settlement, vibrations, tilt and change in crack width, before, during and after tunneling and construction of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 ::: 338 wp_2890.18.j.doc Kalbadevi Station vibration monitoring shall be carried on 24/7 basis during construction works.
c. Wells in the premises should be closely monitored for water level and water quality.
232. In the affidavit dated 16.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) on behalf of respondent, it is stated that respondent No.4 would implement the recommendations.
233. Insofar as the submission as regards drying up of well water is concerned, Mr. Anturkar submitted that the wells are situate at the top layer of soil at a depth of nearly 20 ft. while the tunnel is being constructed within the basalt rock layer at a depth of 60-65 ft. Thus, there is considerable space and difference of layers between the wells and tunnel. He submitted that even if some temporary fluctuations are observed during tunneling work, the same would be normalised once the TBM machines pass through the areas. Apart from this, as a ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:05 ::: 339 wp_2890.18.j.doc precautionary measure, 14 groundwater charging wells are installed in the area to maintain water levels in the wells. In addition, the water levels in the wells are monitored twice a day by using water level indicator. The quality check can also be carried out on monthly basis during the construction period, if permission is gratned for collecting water samples.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.2 -
STATE OF MAHARASHTRA
234. Mr. Kumbhakoni, learned Advocate General submitted that in the facts and circumstances of the present case it is necessary to find out whether the petitioners have made out a case claiming protection under Article 25 of the Constitution of India and whether enforcement of Article 25 can stop the proposed alignment by the 4th respondent. He heavily relied upon paragraph-9 of the decision in Second Anand Marg's9 case. He submitted that the petitioners have not produced any evidence to substantiate their case that the religious practices etc. are ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 340 wp_2890.18.j.doc essential and integral part of Zoroastrian religion. He submitted that Article 25 is subject to Part III of the Constitution, namely, other Fundamental Rights. The fundamental right under Article 21 of the general citizenry will prevail over the fundamental rights claimed by the petitioners under Article 25 of the Constitution. He invited our attention to the following :
(i) Paragraph-12 of the order dated 18 th, 19th and 20th July, 2018 passed by the Division Bench of this Court (Coram: A.S. Oka & Riyaz I. Chagla, JJ.)35
(ii) Paragraph-16 of Mrs. Pervin Jehangir Vs. Union of India36;
(iii) Order dated 24.8.2018 passed by the Division Bench of this Court [Coram: Naresh H. Patil, J. as the learned Chief Justice then was and G.S. Kulkarni, J.)37;
(iv) Asha Ranjan Vs. State of Bihar38 and in particular paragraphs-55 to 58, 60 and 6 thereof to contend that when there is conflict between the fundamental right/s claimed by 35 Notice of Motion (L) No.507/2017 in Writ Petition (L) No.2107/2017.
36 2017 SCC OnLine Bom 2510 37 in Notice of Motion (L) No.507/2017 in Writ Petition (L) No.2107/2017 38 (2017) 4 SCC 397 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 341 wp_2890.18.j.doc a group of persons vis-a-vis the fundamental right/s claimed by other group of persons, the Court has to balance the fundamental rights claimed by both sides;
(v) Modern Dental College's27 case.
(vi) Second Anand Marg's9 case and in particular paragraph-9 thereof to contend that no activity is carried out by respondent No.4 below fire or well of Atash Behrams.
(vii) Alaknanda Hydropower Company Ltd. Vs. Anuj Joshi 39 and in particular paragraphs-25 and 33 thereof. SUBMISSIONS ON BEHALF OF RESPONDENT NO.1 -
UNION OF INDIA
235. Mr. Anil Singh, learned Additional Solicitor General submitted that the material produced by the petitioners is not sufficient to show that the claim made by the petitioners is essential and integral part of Zoroastrian religion. He submitted that no scriptures are placed on record by the petitioners to substantiate their claim nor there is any reference made to the scriptures by the affidavits filed by the Priests and High Priests. 39 (2014) 1 SCC 769 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 342 wp_2890.18.j.doc He has taken us through the material produced by the petitioners. He relied upon following decisions:
(i) Unreported decision of the Division Bench of this Court (Coram: A.S. Oka & A.S. Chandurkar, JJ.) in Gramsabha of village Battis Shirala Vs. Union of India 40 and in particular paragraphs-10 to 12 thereof;
(ii) Mohammad Ali Khan's13 case and in particular paragraph-9 thereof.
(iii) Dr.Noorjehan Safia Niaz's18 case.
REJOINDER BY THE PETITIONERS
236. In rejoinder, Mr. Seervai submitted that the respondents have contended that the scriptures are necessary for determining the religious practices which are essential and integral part of a religion. The respondents have contended that only essential and integral religious practices are protected by Article 25 of the Constitution. He submitted that the scriptures are not the only requirement for determining the right under 40 dated 15.7.2014 in W.P. No.8645/2013 along with PIL No.75/2011 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 343 wp_2890.18.j.doc Article 25. He relied upon the following :
(i) Paragraphs-17 and 20 of Shirur Mutt's1 case;
(ii) Paragraphs-33 and 54 of Sardar Syedna's3 case;
(iii) Paragraph-57 of Tilkayat's4 case;
(iv) Paragraphs-85, 90 and 118 of Narayana's8 case;
(v) Paragraph-9 and 81 of the Second Anand Marg's9 case;
(vi) Paragraph-13 of Ratilal Panachand Gandhi's10;
(vii) Paragraph-33 of Gulam Abbas's7 case;
(viii) Paragraphs-8 and 18 of Bijoe Emmanuel Vs. State of Kerala41.
(ix) Paragraphs-39 and 41 of Janab Salehbai Saheb Saffiyudin Vs. The Municipal Corporation of Greater Mumbai42;
237. Mr. Seervai further submitted that in deciding as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community. There is a complete unanimity of all 41 1986 SCR (3) 518 42 (1993) 3 Bom CR 282 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 344 wp_2890.18.j.doc religious heads and Zoroastrian scholars on this aspect. By order dated 23.5.2018, this Court directed all the High Priests of the Zoroastrian community to place their stand with respect to the issues raised in the Petition on record. All the five High Priests of the Zoroastrian religion have declared that the above beliefs are the core beliefs of the Zoroastrian faith. The affidavits of four High Priests and the letter of one of one High Priest unequivocally bear out the integral religious beliefs. [pages-148- 150]. Even prior to filing of these affidavits, the High Priests had issued various letters to various Government authorities and had raised issues concerning the spiritual sanctity of the Atash Behrams. (pages 111, 113, 114, 124 and 141 of Petition). The affidavit dated 3.6.2018 filed by Bombay Parsi Panchayat being the Apex Body of the entire community, which is enclosed with the affidavit of petitioner No.1 dated 7.6.2018 at page-164. Support letters of numerous Parsi Institutions and Anjumans, across India. (pages-187-204 of the affidavit dated 13.6.2018). ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 :::
345 wp_2890.18.j.doc
238. Petitioner No.4 is himself a renowned religious scholar of Zoroastrian faith and a qualified priest and who has derived the knowledge in connection with the spiritual aspects mentioned from accepted practices, long standing traditions, scriptures, customs and teachings. Zoroastrian religious scholars like Ervad Parvez Bajan have filed affidavits in support of the contentions raised in the petition. (page-497 of the affidavit dated 11.7.2018).
239. Mr. Seervai submitted that reference have been made to scriptures and other material pertaining to various beliefs of Zoroastrians including religious books and articles published by various Zoroastrian scholars as well as High Priests dealing with various aspects in the Petition. He has also referred to the books and articles of Zoroastrian scholars and High Priests, namely, i. J.J. Modi, ii. Mr. Jehangir Chiniwalla, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 346 wp_2890.18.j.doc iii. Feroze Kotwal, iv. Ervad Hormazdyar Dastur Kayoji Mirza, v. Ervad Phiroze S. Masani, vi. Parvez Bajan, vii. Ervad Rohinton Peer.
240. Mr. Seervai invited our attention to the letters issued by High Priests as also the historical background pertaining to Atash Behrams and their importance including books on the subject. Mr. Seervai further submitted that the law grants protection to beliefs, tenets, doctrines, customs, usages and practices and this may not necessarily be scriptural. A large majority of Zoroastrian scriptures have been destroyed and a judicial notice may be taken in that regard. He further submitted that the contention of the respondents that no scriptures are produced are incorrect. The original scripture of the holy Khordeh Avesta which clearly refers to the spiritual concept of karsha is on record. [page-495-496/Exhibit- H/rejoinder]. He has also invited our attention to the Article 27.2.1955 of Jehangir Chiniwala on "Consecration of an Atash ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 347 wp_2890.18.j.doc Behram" are also the documents about nine karshas drawn within the precincts of the Atash Behram, which extends throughout the premises of the Atash Behram. (page-507- 508/rejoinder).
241. Mr. Seervai submitted that reference to scriptures have been made in the article 'The Divine and Exalted Status of Consecrated Fire in Zoroastrianism' by Vada Dasturji Kotwal. (pages-456-464/Exhibit-D/rejoinder). He submitted that even the book "Outline of Parsi History" by Hormazdyar Dastur Kayoji Mirza refers to Zoroastrian scriptures which talk about connection between the fire and Mother Earth (Armaiti). (pages- 465-482/ pages-470-473/rejoinder)
242. He submitted that similarly reference to scriptures can also be found in the Article of Vada Dasturji Kotwal ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:06 ::: 348 wp_2890.18.j.doc 'Spiritual Aspects of the Gathas and Their Community in the Later Stages'. (pages-488-488/Exhibit-F/rejoinder).
243. Mr. Seervai submitted that the Court is concerned with the decision making process and not the decision itself. He submitted that if the decision violates the fundamental right, then the decision can also be challenged. In support of this proposition he relied upon paragraphs-74, 75 and 95 of the Apex Court in TATA Cellular Vs. Union of India 43. He submitted that the decision making process concerning the tunnel passing under the Atash Behram have serious flaws. It was only on 9.11.2017, the Hon'ble Chief Minister convened the meeting of High Priests to discuss the issue. The manner in which the meeting was convened was clearly questionable as is evident from the order dated 23.5.2018 passed by this Court. In that order, this Court recorded that a question was put to the learned 43 (1994) 6 SCC 651 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:07 ::: 349 wp_2890.18.j.doc Counsel appearing for the parties as to why the meeting was convened only with two of the five head Priests. This clearly shows that respondent No.4 accepted that initial decision making process have flaws. He submitted that when the meeting was convened the Trustees of Atash Behrams and three High Priests were kept out of the loop. This Court, therefore, directed five members of the Board of Directors of respondent No.4 to hear the petitioners, the Architect nominated by them, the Trustees of Atash Behrams, the High Priests, their Advocates if any. He submitted that the notification dated 12.12.2011 (at page-411 of the affidavit-in-reply dated 26.6.2018) does not have any material details. Kalbadevi Metro Station is not even mentioned in the said notification. This glaring fact came to light only in June, 2018 when respondent No.4 provided certain documents upon request of the petitioners in order to attend the meeting with respondent No.4 in pursuance of the directions dated 23.5.2018 issued by this Court. This clearly establishes the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:07 ::: 350 wp_2890.18.j.doc glaring flaws in the decision making process and lack of transparency on the part of respondent No.4.
244. Mr. Seervai further submitted that though the petitioners' Architect have provided various options, respondent No.4 has agreed only to partial realignment. The very fact that respondent No.4 has agreed to move it 3.5 meters only after the order of the Court dated 23.5.2018 itself demonstrates that the decision making process is seriously flawed. The International Expert has clearly shown that even today the realignment so as to shift the tunnel outside the premises of both the Atash Behrams is easily feasible and achievable and can be undertaken. He submitted that the conduct of the 4 th respondent should also be kept in mind as they want to present the Court with a fait accompli. Despite this, the international consultant has worked out various options of realignment so as to shift the tunnels outside the Atash Behram, which is still easily ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:07 ::: 351 wp_2890.18.j.doc feasible and achievable. He submitted that the petitioners have taken every possible steps including involving an international tunneling expert for the purpose of working out a solution for realignment. However, the conduct of respondent No.4 has been far from transparent or fair in the present proceedings. The petitioners have demonstrated by way of a detailed reports of international tunneling experts that conceptually and otherwise the shift in the alignment is possible. There is no question of compromising the safety of the passengers using the Kalbadevi Metro station. All the parameters as required by respondent No.4 have been addressed while suggesting not one but eight conceptual options of realignment based on global metro experience of the international tunneling expert.
245. Insofar as the submissions of respondent No.4 on the structural safety and integrity is concerned, Mr. Seervai submitted that the construction of the proposed Kalbadevi ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:07 ::: 352 wp_2890.18.j.doc Station will involve controlled blasting. The proposed Kalbadevi station is located merely 5 meters away from the Wadiaji Atash Behram. This glaring fact came to light only in June, 2018 when respondent No.4 provided certain documents on the request of the petitioners in order to attend the hearing before the five members of Board of Directors of respondent No.4. He submitted that respondent No.4 in its report dated 15.6.2018 has enclosed at Appendix-X a Kalbdevi Station report which shows that controlled blasting will in fact directly occur under the Wadiaji Atash Behram in order to expand the tunnel to give access to the station platforms of the proposed Kalbadevi station. In the same report, the 4th respondent also indicated that it will use NATM techniques for enlargement of the tunnels. (pages- 272-411/ 394-403/ affidavit-in-reply dt. 26.6.2018)
246. Mr. Seervai submitted that the controlled blasting, secant piling activities in respect of the proposed location of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:07 ::: 353 wp_2890.18.j.doc Kalbadevi station at such close proximity to a heritage structure would result in the Wadiaji Atash Behram being subjected to a very real and serious threat of structural damage. The Wadiaji Atash Behram is irreplaceable and, therefore, the Court should not rely on the self-serving and convenient assurances given by respondent No.4. There is no independent expert report on record. The report of VJTI is not an independent expert's report. He submitted that the incident of Sao Paulo subway yellow line- 4, which episode is recorded in a technical paper presented during the Proceedings of 2008 AACJ-IJME International Conference, shows that when an explosion is planned in a controlled manner (controlled blasting), serious accidents involving loss of lives as well as collateral damage to nearby structures, can happen. In any case, in its report dated 15.7.2018, respondent No.4 has stated that the construction of the proposed Kalbadevi station has not yet commenced and that even the land acquisition process for the purpose of the station is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:07 ::: 354 wp_2890.18.j.doc not yet completed. Respondent No.4 has not dealt with the submissions of the petitioners which were made by amending the petition.
247. Mr. Seervai submitted that in the case of K. Guruprasad Rao11, the Apex Court has prohibited any kind of blasting activities whether wagon blasting method, controlled blasting or even mechanical operations as a distance of 1 km from the temple.
248. Mr. Seervai submitted that respondent No.4 has contended that metro construction has nothing to do with Jer Mahal building collapse. He denied that the petitioners are creating any confusion. In fact the petitioners have clearly mentioned in the rejoinder that the pictures annexed by respondent No.4 contractors pertain to Jer Mahal building which ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 355 wp_2890.18.j.doc is right next to Jer Mahal Annexe building. The petitioners have also clearly mentioned that respondent No.4 was anticipating damage to the Jer Mahal building. The incident report relied upon by respondent No.4 is an internal report of the general consultant of respondent No.4 and does not contain any detailed study. Even assuming the construction work was on hold three days prior to the incident does not eliminate the possibility of collapse of structure weakened from vibration of tunnel construction in the vicinity. He submitted that the VJTI failed to annex any data in connection with vibrations which would have shed light on the intensity of vibrations when the building fell. Respondent No.4 has actively suppressed from the Court this all important and crucial parameter for considering the structural safety and stability of the Atash Behrams.
249. Mr. Seervai further submitted that respondent No.4 contended that metro station has nothing to do with the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 356 wp_2890.18.j.doc development of cracks in the Wadia building and that already a warning had been given by MBRRB. Even assuming this is to be true, it does not mean that the building cannot be adversely affected by the metro construction activities. He submitted that the cracks appearing in the Wadia building have a direct nexus with the tunneling activity of the 4 th respondent. It is significant to note that the lower tunnel crossed the concerned structures around 14.7.2018 and cracks developed on 11.7.2018. The VJTI report states that it could not comment as to whether the separation cracks appeared due to the tunneling activity or any other reason, despite the fact that the Wadia building episode was specifically brought to the attention of VJTI.
250. Mr. Seervai submitted that though VJTI was appointed as an independent expert to conduct an independent study and give its report, the VJTI was not permitted to blindly ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 357 wp_2890.18.j.doc rely on only the data supplied by respondent No.4 and its contractors. VJTI has not placed the crucial data on vibrations. Respondent No.4 has not dealt with any of the major submissions concerning the VJTI report made by the petitioners. In any case, the VJTI has not done an independent investigation, or for that matter any examination or study. The report of VJTI is exfacie riddled with glaring inconsistencies, inaccuracy and suffers with non-application of mind, lack independent analysis and is, therefore, unreliable. The glaring inconsistencies relating to contradictions between Annexure5 & 7 of the same report remain uncontroverted.
CONSIDERATION OF SUBMISSIONS
251. We have heard Mr. Seervai for the petitioners from 7.9.2018 to 17.9.2018, Mr. Devitre for supporting respondents No.5 to 12 on 17.9.2018, Mr. Aney for respondent No.4 from 17.9.2018 to 21.9.2018, Mr. Anturkar for respondent No.4 on the question of structural safety and integrity of the Atash Behrams ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 358 wp_2890.18.j.doc in question and partly on Article 25 on 24.9.2018, 25.9.2018 and 26.9.2018, Mr. Kumbhakoni and Mr. Singh on 25.9.2018 and 26.9.2018. Mr. Seervai advanced arguments in rejoinder from 26.9.2018 to 28.9.2018. On 28.9.2018, we passed order recording that the learned Senior Counsel for the respective parties have concluded their arguments. At the end, Mr. Seervai submitted a copy of the recent judgment of the Apex Court in the case of Indian Young Lawyers Association and ors. vs. The State of Kerala and ors.44, (Sabarimala Temple's Case). Mr. Aney submitted that as the parties have concluded their arguments on merits, the next date may be restricted only to the extent of citing of the judgments. In view thereof, at the request of learned Counsel for the parties, the matter was adjourned to 8.10.2018 for arguments on the decision of Apex Court in Indian Young Lawyers Association (Sabarimala's case) 44. Accordingly on 8.10.2018 the learned Counsel have advanced 44 Writ Petition (Civil) No. 373/2006, decided on 28.9.2018 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 359 wp_2890.18.j.doc their arguments on that decisions. The petitioners have tendered Notice of Motion No.395/2018 during the course of hearing. On 8.10.2018, we have closed the matter for judgment and continued the ad-interim order granted earlier until further orders. On the same day, we have passed order on the Motion that we would deal with the Notice of Motion along with the main Petition which is closed for judgment. For the reasons separately recorded, we have dismissed the Motion.
252. I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record as also the written submissions filed on record. In my opinion following issues are raised in the present Petition:
[1] Right to Freedom of Religion;
[2] Structural safety and integrity of two Atash Behrams in question;::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 :::
360 wp_2890.18.j.doc
253. The issue of Right to Freedom of Religion can be divided in three parts :
(i) the basis for assumption of existence of fundamental right under Article 25 of the Constitution of India;
(ii) the practices which are essential and integral part of the religion;
(iii) balancing of fundamental right of the petitioners under Article 25 vis-a-vis other rights in Part-III of the Constitution of India.
254. The issue of structural safety can be divided in two parts, namely;
(i) likelihood of damage to the existing structure;
(ii) alternative proposals submitted by the petitioners. RIGHT TO FREEDOM OF RELIGION UNDER ARTICLE 25 OF CONSTITUTION OF INDIA
255. In order to deal with this issue, it is necessary to refer ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 361 wp_2890.18.j.doc to the decision of Apex Court in the case of Indian Young Lawyers Association (Sabarimala's case) 44. Said decision has considered all the judgments dealing with Articles 25 and 26 right from Nar Hari Sastri and Ors. Vs. Shri Badrinath Temple Committee45 to Shayara Bano's19 case.
256. In that case, Writ Petition was instituted under Article 32 of the Constitution of India seeking directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of the powers conferred by 45 AIR 1952 SC 245 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 362 wp_2890.18.j.doc Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to pass directions for the safety of women pilgrims. The Apex Court considered the question, namely, whether exclusion of women of the age group of 10 to 50 years is an essential practice under the Hindu religion in the backdrop of the peculiar attending circumstances attributable to the Sabarimala temple.
257. Deepak Misra, C.J.I. rendered judgment for himself and A.M. Khanwilkar, J. In paragraph-112, reference was made to the decisions of John Vallamattom Vs. Union of India 46 and Free Church of Scotland Vs. Overtoun47. Reference was also made to :
46 (2003) 6 SCC 611 47 (1904) AC 515 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:08 ::: 363 wp_2890.18.j.doc
(i) Shirur Mutt's1 case;
(ii) Mohd. Hanif Quareshi Vs. State of Bihar48;
(iii) State of West Bengal Vs. Ashutosh Lahiri49
(iv) Durgah Committee's5 case;
(v) Acharya Jagadishwarananda Avadhuta Vs. Commissioner of Police, Calcutta50 (First Ananda Marg Case)
(vi) N. Adithayan's23 case;
(vii) Second Anand Marg's9 case.
258. In Shirur Mutt's1 case, the Apex Court opined that in the first place what constitutes the essential part of religion is primarily to be ascertained with reference to the doctrines of that religion itself. (para-114)
259. In Durgah Committee's5 case, although the Apex Court speaking in the context of Article 26, warned that some practices, though religious, may have sprung from merely superstitious beliefs and may, in that sense, be extraneous and 48 AIR 1958 SC 731 49 AIR 1995 SC 464 50 (1983) 4 SCC 522 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:09 ::: 364 wp_2890.18.j.doc unessential accretions to religion itself and unless such practices are found to constitute an essential and integral part of a religion, their claim for protection as essential practices may have to be carefully scrutinized. In other words, the protection must be confined to such religious practices as are an essential and an integral part of the religion and no other. (para-117)
260. In N. Adithayan's23 case, the Apex Court observed that the legal position that the protection under Articles 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion. (para-120) [Emphasis supplied] ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:09 ::: 365 wp_2890.18.j.doc
261. In the case of Second Anand Marg9, the Apex Court opined that the protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. (See the decisions in Srirur Mutt's1 case, Sardar Syedna's3 case and Seshammal's6 case] regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not). What is meant by 'an essential part or practices of a religion' is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:09 ::: 366 wp_2890.18.j.doc cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. Nobody can say that essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the nonessential part or practices. (para-121) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:09 ::: 367 wp_2890.18.j.doc [Emphasis supplied]
262. It is the duty of the Court to determine (1) whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion, or (2) whether that practice could be regarded as an essential part of the Hindu religion and (3) whether without the said practice that religion could be altered. In the absence of any scriptural or textual evidence, the Court cannot accord the practice the status of an essential practice of a religion. (page-122) [Emphasis supplied]
263. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner. The exclusionary practice which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:09 ::: 368 wp_2890.18.j.doc an essential nor an integral part of the Hindu religion without which Hindu religion, of which the devotees of Lord Ayyappa are followers, will not survive. (page-123)
264. The practices which emerge or change with the efflux of time cannot be regarded as the core of the religion. There has to be unhindered continuity of practice to attain the status of essential practice. Alterable practices are definitely not the core of religion. (page-125) [Emphasis supplied]
265. In a concurring judgment, R.F. Nariman, J., also referred to several decisions. In paragraph-5, reference was made to Ratilal Panachand Gandhi's10 case. The relevant portion of that decision is to the following effect :
"xxxxxxxxxxxxxx Religious practices or performances of acts in pursuance of religious ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:09 ::: 369 wp_2890.18.j.doc belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar, J. in the case of Jamshed ji v. Soonabai [33 Bom. 122], and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid charitable gifts, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:10 ::: 370 wp_2890.18.j.doc the observations, we think, are quite appropriate for our present purpose. ―If this is the belief of the community thus observed the learned Judge, ―and it is proved undoubtedly to be the belief of the Zoroastrian community,--a secular Judge is bound to accept that belief--it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.
These observations do, in our opinion, afford an indication of the measure of protection that is given by Article 26(b) of our Constitution. xxxxxxxxxxxxxxx xxxxxxxxxxxx"
[Emphasis supplied]
266. In paragraph-11, reference was made to Tilkayat's4 case and the instructive passage, laying down certain tests as to what could be said to be an essential or integral part of religion as opposed to purely secular practice and laid down what is to be done to separate what may not always be oil from water, was extracted. The relevant portion reads thus :
"In deciding the question as to whether a given ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:10 ::: 371 wp_2890.18.j.doc religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. xxxxxxxx xxxxxxxxxxxx"
267. In paragraph-20, reference was made to Adi Saiva Sivachariyargal Nala Sangam Vs. Government of Tamil Nadu51. In that case it was held that although what constitutes essential religious practice must be decided with reference to what the religious community itself says, yet, the ultimate constitutional arbiter of what constitutes essential religious practice must be the Court, which is a matter of constitutional necessity.
[Emphasis supplied]
268. In paragraph-21.6, it was observed thus:
"21.6. It is only the essential part of religion, as distinguished from secular activities, that is the subject matter of the fundamental right. 51 (2016) 2 SCC 725 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:10 ::: 372 wp_2890.18.j.doc Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered as essential parts of religion. Matters that are essential to religious faith and/or belief are to be judged on evidence before a court of law by what the community professing the religion itself has to say as to the essentiality of such belief. One test that has been evolved would be to remove the particular belief stated to be an essential belief from the religion - would the religion remain the same or would it be altered?
Equally, if different groups of a religious community speak with different voices on the essentiality aspect presented before the Court, the Court is then to decide as to whether such matter is or is not essential. Religious activities may also be mixed up with secular activities, in which case the dominant natureof the activity test is to be applied. The Court should take a commonsense view and be actuated by considerations of practical necessity."
[Emphasis supplied]
269. In a concurring judgment, Dr. D.Y. Chandrachud, J., observed in paragraph-6 that the chapter on Fundamental Rights encompasses the rights to (i) Equality (Articles 14 to 18);
(ii) Freedom (Articles 19 to 24); (iii) Freedom of Religion (Articles 25 to 28); (iv) Cultural and educational rights (Articles 29 and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:10 ::: 373 wp_2890.18.j.doc
30); and (v) Constitutional remedies (Article 32).
270. In paragraph-13, the learned Judge referred to the expression "subject to" appearing in Article 25(1) and observed thus :
"13. The expression "subject to" is in the nature of a condition or proviso. Making a provision subject to another may indicate that the former is controlled by or is subordinate to the other. In making clause 1 of Article 25 subject to the other provisions of Part III without introducing a similar limitation in Article 26, the Constitution should not readily be assumed to have intended the same result. Evidently the individual right under Article 25(1) is not only subject to public order, morality and health, but it is also subordinate to the other freedoms that are guaranteed by Part III. xxxxxxxx xxxxxxx xxxxxxxx"
[Emphasis supplied]
271. Reference was made to the decisions in Shirur Mutt's1 case and Devaru's2 case. In Devaru's2 case, the Court laid down a crucial precedent in carving out its role in examining the essentiality of such practices. While the Court ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:10 ::: 374 wp_2890.18.j.doc would take into consideration the views of a religious community in determining whether a practice qualified as essential, this would not be determinative. Prior to Devaru2, the Court used the word 'essential' to distinguish between religious and secular practices in order to circumscribe the extent of state intervention in religious matters. The shift in judicial approach took place when 'essentially religious' (as distinct from the secular) became conflated with 'essential to religion.' The Court's enquiry into the essentiality of the practice in question represented a shift in the test, which now enjoined upon the Court the duty to decide which religious practices would be afforded constitutional protection, based on the determination of what constitutes an essential religious practice. (para-32)
272. In paragraph-33, reference was made to Mohd. Hanif Quareshi's48 case and it was observed that the Court placed ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:10 ::: 375 wp_2890.18.j.doc reliance upon Islamic religious texts to determine that the sacrificing of cows at Bakr-Id was not an essential practice for Muslims. The Court the looked to the texts and scriptures of the religious community to conclude that the practice claimed to be essential was not supported by religious tenets.
273. In paragraph-34, reference was made to Durgah Committee's5 case. Paragraph-33 of that decision was extracted which issued an important caution in following words :
"33. xxxxxxxx in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:11 ::: 376 wp_2890.18.j.doc to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."
274. After extracting paragraph-33 from Durgah Committee's5 case, it was observed in paragraph-35 thus:
"35. This statement pushed the essential religious practices doctrine in a new direction. The Court distinguished, for the first time, between 'superstitious beliefs' and religious practice. Apart from engaging in a judicial enquiry to determine whether a practice claimed to be essential was in fact grounded in religious scriptures, beliefs, and tenets, the Court would 'carefully scrutinize' that the practice claiming constitutional protection does not claim superstition as its base. This was considered a necessary safeguard to ensure that superstitious beliefs would not be afforded constitutional protection in the garb of an essential religious practice. The Court also emphasized that purely secular matters clothed with a religious form do not enjoy protection as an essential part of religion."
275. In paragraph-38, it was observed that Durgah Committee's5 case and Sardar Syedna's3 case established the role of the Court in scrutinizing claims of practices essential to ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:11 ::: 377 wp_2890.18.j.doc religion in order to deny constitutional protection to those practices that were not strictly based in religion. Ascertaining what was "essential" to a religious denomination "according to its own tenets" required a scrutiny of its religious texts. Durgah Committee's5 case laid down that the court would 'carefully scrutinize' claims to deny constitutional protection to those claims which are religious but spring from superstitious beliefs and are not essential to religion.
276. In paragraphs-51 and 52, reference was made to S. Mahendran Vs. The Secretary, Travancore Devaswom Board, Thiruvananthpuram52. In paragraph-52, it was observed thus :
"52. The High Court proceeded on the basis of the 'complete autonomy' of the followers in determining the essentiality of the practice. This followed the dictum in Shirur Mutt, without taking note of evolution of precedent thereafter, which 52 AIR 1993 Kerala 42 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:11 ::: 378 wp_2890.18.j.doc strengthened the role of the Court in the determination and put in place essential safeguards to ensure to every individual, the constitutional protection afforded by the trinity of dignity, liberty and equality. The approach of the High Court is incorrect. The High Court relied completely on the testimonies of the Thanthris without an enquiry into its basis in religious text or whether the practice claiming constitutional protection fulfilled the other guidelines laid down by this Court. Such an approach militates against the fundamental role of the constitutional Court as a guardian of fundamental rights. Merely establishing a usage will not afford it constitutional protection as an essential religious practice. It must be proved that the practice is 'essential' to religion and inextricably connected with its fundamental character. This has not been proved."
(emphasis supplied)
277. In paragraph-109, it was observed that it is well to remind ourselves that the right to freedom of religion which is comprehended in Articles 25, 26, 27 and 28 is not a stand alone right. These Articles of the Constitution are an integral element of the entire chapter on fundamental rights. Constitutional articles which recognise fundamental rights have to be ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:11 ::: 379 wp_2890.18.j.doc understood as a seamless web. Together, they build the edifice of constitutional liberty. Fundamental human freedoms in Part III are not disjunctive or isolated. They exist together. It is only in cohesion that they bring a realistic sense to the life of the individual as the focus of human freedoms.
278. Bearing in mind the principles laid down in the aforesaid decision, let me deal with the issues raised in this petition.
[1] RIGHT TO FREEDOM OF RELIGION :
(i) The basis for assumption of existence of fundamental right under Article 25 of the Constitution of India:
(ii) The practices which are essential and integral part of the religion:
These issues are overlapping and, therefore, are discussed together. In support of their case, the petitioners have relied upon following material :::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:11 :::
380 wp_2890.18.j.doc [i] (pg. 37-41 of the Petition) :: The book "The Religious Ceremonies and Customs of the Parsees" by Jivanji Jamshedji Modi, 1st Edition 1922, 2nd Edition 1937, Reprint 1986, Reprint 1995. The learned Author has described the place where inner liturgical ceremonies can be performed, namely, Dar-i-Meher. A fire-temple is, as the word signifies, a temple or a sacred place for the preservation of the sacred fire. These temples have generally a place or a set of apartments attached to them where the inner liturgical ceremonies are performed. Though, strictly speaking, these places or portions attached to the temples for the performance of these ceremonies form the Dar-i-Meher proper, generally the whole religious building, including the chamber of the sacred fire, is called the Dar-i-Meher.
All the fire-temples need not necessarily have these Dar-i-Mehers or the apartments for the performance of the inner liturgical services attached to them.
(a) (pg. 42-73 of the Petition) :: The petitioners have annexed Chapter-IX dealing with (i) Consecration Ceremonies and (ii) the BUI ceremony.
(b) (pg.46 of the Petition) :: Part-I thereof deals with "Consecration of the Sacred Fires and the Fire-Temples". It is stated therein that Consecration is "the act or ceremony of separating from a common to a sacred use, or of devoting and dedicating a person or thing to the service and worship of God" by certain rites or solemnities. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:11 :::
381 wp_2890.18.j.doc Consecration does not make a person or thing sacred but declares him or it to be sacred, that is devoted to God or to divine service; as the consecration of priests among the Israelites; the consecration of the vessels used in the temple; the consecration of a bishop. The Parsees have no consecration of persons, in the sense in which the word is used among the Christians, e.g., the consecration of a bishop. If, by consecration is meant conferring of a certain qualification upon a person to enable him or to entitle him to do a certain religious function or rite, they have such a consecration. But the principle idea is, that the person seeks consecration by his own willing acts rather than any other person conferring the consecration. So, in the case of a person, the more proper word, from a Parsee point of view, is "initiation" than "consecration". Among things, there is the consecration of the following :
I. The Sacred Fires and the Fire-Temples.
II. The Towers of Silence.
III. The Âlât (implements, apparatus), i.e. religious requisites.
There are three grades of the Sacred Fire-- (A) The Sacred Fire of the Âtash Behrâm, (B) that of the Âtash Âdarân, and (C) that of the Âtash Dâdgâh. These three have their different rituals of consecration and also different rituals for the daily prayers at the five time (gahs) of the day, when they are fed with fresh fuel. The learned Author thereafter deals with the process of consecration of the Sacred ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:11 :::
382 wp_2890.18.j.doc Fire.
(pg.199-200 of the book)
(c) (pg. 47 of the Petition ) :: (A) Consecration of the Sacred Fire of the First Grade, the Âtash Behrâm ::-
The ritual formulated for the consecration of the sacred fire seems to have been developed from certain passages of the eighth chapter of the Vendi-dâd (VIII. 73-96), where, it is enjoined, that the fires used for different purposes and by different tradesmen may be carried from their places of use and business and enshrined in a Dâd-gâh (Av. Dâityô-gâtu), i.e., in a proper place. The list of fires enumerated is as follows:
Fires used (1) in burning a corpse, (2) in burning filth, (3) in burning dirt, (4) the fire used by a potter, (5) a glass-blower, (6) a coppersmith, (7) a goldsmith, (8) a silversmith, (9) an ironsmith, (10) a steelsmith, (11) a baker, (12) a furnace-worker, (13) a tinsmith, (14) a shepherd, (15) a military man or soldier, (16) a neighbour.
(pg.200 of the book)
(d) (pg. 48 of the Petition) :: Each of the above fires is at first collected, purified, and consecrated in a certain manner. All these fires, thus collected, purified and consecrated, are united into one fire, which is then consecrated as one united fire. This consecrated fire is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:12 ::: 383 wp_2890.18.j.doc then enthroned in a Temple which itself is previously consecrated. These processes is under the following heads :
1. Collection of the 16 fires.
2. Purification of the 16 fires.
3. Consecration of the 16 fires.
4. Unition of the 16 consecrated fires.
5. Consecration of the united Sacred Fire.
6. Consecration of the Temple itself.
7. Enthroning the united fire.
(pg.201 of the book)
(e) (pg.48 to 61 of the Petition) :: The Author thereafter has described :
1. The process of the collection of the 16 fires.
2. The process of purification.
3. The process of consecrating the 16 fires.
4. The final unition of all the 16 fires.
5. The final consecration of the United Fire.
6. The Consecration of the chamber of the Fire (the Sanctum Sanctorum).
7. The Final Enthronement.
(pg.201-214 of the book) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:12 ::: 384 wp_2890.18.j.doc
(f) (pg.63-64 of the Petition) :: The Author describes the signification of the purifying and consecrating processes of the Sacred Fire as also the ceremony of removing the ash of the Sacred Fire for the ritual of Purification. The Author thereafter describes the Bui ceremony, i.e., the ceremony of keeping the fire always burning, by feeding it with fragrant wood. The word "bui" is the Persian form of the Avesta word "baodha". It is "bui" in Pahlavi. Ordinarly, this word means "odour" or "smell". In the Parsee ceremonial phraseology, it means perfume, or good odour. Fire plays a prominent part in all Zoroastrian rituals. No ritual can be complete without the presence of fire. So, sandalwood, frankincense, and such other articles of fuel that emit good odour on burning are necessary requisites in all ceremonies. In the temples, where the Sacred Fire is kept perpetually burning, the feeding of the fire is an important ceremony. It is called "bûi dâdan" in Persian, and "bui devi" (i.e. to give the perfume) in Gujarati.
(pg.216-218 of the book)
(g) (pg.66-67 of the Petition) :: The Author has described the ceremony varying for the three grades of the sacred fire and the five period for the performance of the ceremony.
(pg.219-220 of the book) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:12 ::: 385 wp_2890.18.j.doc
(h) (pg.67-68 of the Petition) :: The Author has described the difference in the way of feeding the fire according to its grades.
(pg.220-221 of the book)
(i) (pg. 490 to 491 of the Petition) :: Most of the Karshas are of a temporary kind, but in the Fire-temples, they are of a permanent kind. In the Yazashnagah, where the Yacna, Vendidad, and Baj ceremonies are performed, such karshas are necessary. So, there, they are of a permanent kind. There, the stone slabs, which form the pavement, have furrows, about two inches deep and two inches wide, cut in the stones. In the chamber of the Sacred Fire also, there are such permanent furrows cut in the stones of the pavement. These furrows are of the first kine, i.e., they are intended to preserve the efficacy of the consecrated fire or articles and of the sacred ceremonies within them.
A karsha of this kind is generally known as a 'pavi'. Pav means sacred. So a Pavi means a furrow which preserves the sacredness of the consecrated things or of the sacred ceremonies. When the efficacy of the consecrated things is encroached upon by somebody else going within the circle of within the limit pointed out by the pavi, then the thing is said to be avadu, (apav) i.e. desecrated. In the phraseology of the ritual, the words "pavi karvi" are at times ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:12 ::: 386 wp_2890.18.j.doc used to signify the preparations of temporary furrows or the performances of religious ceremonies.
(pg. 109-110 of the book) [ii] (pg. 99 to 104 of the petition) : Book "Zoroastrianism Ancient and Modern", written and published in the year 1917 by Ervad Phiroze S. Masani, Vakil, High Court, Late Fellow, Elphinstone College and Mulla Feeroze Avesta and Pahlavi Madressa.
(a) The learned Author has highlighted the part played by living water in ceremonies. The learned Author has discussed 'Jashan Ceremony' and explained how it benefits the living for whom it is performed. 'Khastra' or magnetic and electric forces and currents play an important part in all Zoroastrian rituals. Even modern science admits that invisible subtle magnetic forces emanate from every mineral, vegetable, and animal and human creation, and it is on account of this reason that only certain kinds of things having best and pure magnetic currents are taken in the rituals. Water of springs or wells, etc., taken in the Jashan ceremony are employed so as to receive best magno-electric currents issuing from them. Water has those five hydro-electrical magnetic forces (Adu-fradho, Vanthwo fradho, Gaetho-fradho, Khshaeto-fradho, Danghu-fradho) so often remembered in the Aban Yasht, and all these Fradho or hydro-electric forces have the best natural efficiency, if the water is natural i.e. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:12 ::: 387 wp_2890.18.j.doc derived from running streams. That is why only pure water of wells or springs is strictly recommended for use in all Zoroastrian rituals, and the pure running water of wells or springs which is exposed to the visible and dark rays of the sun all the day has its Fradho naturally in a very high order of efficiency and activity.
(pg 129 of book)
(b) (pg. 517-518 of the Petition) The learned Author referred to Bareshnoom or nine days ceremony for the purification of the aura or personal magnetism of oneself. These ceremonies meant for the dead e.g., the three days' Srosh ceremony for giving the departed soul into the charge of the angel Srosh, on the dawn of the Fourth Day; the Pad-roj or the ceremony performed during the last hour of the Third Night of a soul's sojourn here in this world after death, the hour when the soul has his full consciousness awakened as to the Pad- dehashn or reward for its goodness and Pad-fras or punishment for its vice, from which two words we have the 'Pad-dehashn-Pad-fras-roj' i.e. the Day of Judgment or Dooms-day or Pad-roj; the Afringan or periodic blessing ceremony for helping the dead on to their progress in the unseen world; the Yzashne and the Vendidad, and the Nirangdin and the Hama-yasht, which are special ceremonies far more efficient than others lasting for several days or months together for the help of the dear departed ones, etc., etc. - all these rituals and ceremonies and liturgies are all but spirito-scientific processes producing grand, practical results in the unseen world, and are based ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:12 ::: 388 wp_2890.18.j.doc on an entirely scientific understanding of the subtle and unseen laws of nature. Some of such grand fundamental laws of nature taught by Zoroaster in the Avesta are -
1. Zravan, - the laws of Eternal First motion or Energy prevading every force and object, visible or unseen, thus creating the Idea of Time thereby;
2. Uru, - the law of ever widening and ever proceeding, the never-ceasing evolution, or Unfoldment or Spiritual Progress towards the Goal of "One Far-off Divine Event to which the whole creation moves"; - that inherent tendency to advance or go onward which is the essential characteristic of "Urvan" the soul;
3. Staota, - the law of vibrations or subtle colours produced by Vibrations of Motion and Sound, which is at the root of all creation;
4. Khastra, - the law of the Thermo-Electro-Magnetic Forces and currents working throughout the visible and unseen realms, in indefinitely various forms of electricity or magnetism;
5. Kharenangh, --- the law of Halo or Emanation of Subtle Magnetic Aura pertaining to all the Kingdoms - human, animal, vegetable and mineral;
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6. Barej, --- the law of Thermal Energy of Fires of different rates of intensity;
7. Manthra, --- the law of the efficacy of the Mystic Words of Charms composed by the Prophet in unison or attunement with the Original Universal Musical Note - the creative Word - Ahuna Var - the law whereby the Urvan or soul can be en rapport with the Music celestial;
8. Mithra, - the law of Thought-Energy or Thought Power, its transmission and its effect on persons and things by creating unseen forms in the subtlest states of ultra- physical matter;
9. Paitioget, - the law of Retributive Compensation and Universal Adjustment and Obligation with reference to every visible and invisible object and force in the Universe, thus implying the Law of Divine Dispensation of Justice and Equality;
10. Asha, - the law of order, Administration and Holiness Divine, implying the Highest degree of Purity, - physical, mental, moral and spiritual.
(pg. 126-127 of book) [iii] (pg.413 to of the petition) : Affidavit-in-rejoinder dated ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 ::: 390 wp_2890.18.j.doc 11.7.2018 of petitioner No.1 Jamshed to the affidavit-in-reply dated 26.6.2018 of respondent No.4.
(a) Paragraphs-23 and 24 of this affidavit refers to the Article "The Divine and Exalted Status of Consecrated Fire in Zoroastrianism' by Vada Dasturji Kotwal.
(pg. 456 of the Petition) :: The learned Author has stated that according to the Zoroastrian view of the world, fire is seen as the originating source of the sky (ether), water, the earth, men and animals. xxxxx xxxxx xxxxxx xxxxx xxxxxx The followers of Zarathushtra view fire as a sacred creation to be worshipped, propitiated and venerated. The sacred fires found in fire temples are installed with great solemnity after arduous consecration rituals which are done to ensure the purity of the sacred fire.
(pg.165 of the book)
(b) (pg. 462 of the Petition) :: Having arrived in India the Iranian migrants knew well that without the existence of an Atash Bahram in India, the devotional life of the Zoroastrians could not be maintained over a long period of time.
(pg. 171 of the book)
(c) (pg. 463 of the Petition) :: With the enthronement of the sacred Atash Bahram Fire, the Divine Glory of the thee spiritual fires, viz., ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 ::: 391 wp_2890.18.j.doc Adur Farrobag, Adur Gusnasp and Adur Burzenmihr, descends to dwell in the Atash Bahram.
(pg. 172 of the book) [iv] (pg.465 of the Petition) :: Book "Outlines of Parsi History" by Hormazdyar Dastur Kayoji Mirza.
(a) (pg. 428-429 of the Petition) :: Dr. Hormazdyar Dastur Kayoji Mirza was ordained High Priest of Iranshah Atash Behram. He is the 15th generation of the Sanjana Iranshah lineage of Dasturs from the famous Dastur Bahman Dastur Kaikobad. The book brings out the fundamental place of fire and the Atash Behram for Zoroastrians. The book inter alia gives a historic perspective where, the Parsis who had migrated from Persia requested the Hindu king, known in Parsi tradition as Jadi Rana (perhaps a corrupt form of 'Yadav Rana' - most probably a local ruler, to allot a separate piece of land where the Parsis could install their holy fire. Request was also made to Kisse Sanjan where a request for separate piece of land to install sacred fire was made. The Author has observed that, "All Zoroastrian Fire- temples and the places of worship are ritually purified and consecrated places.
(b) (pg. 472-473 of the Petition) :: The Author referred to the original scriptures relating to the connection between the fire and "Armaiti" (Mother Earth) (pg. 392-393 of the book) ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 ::: 392 wp_2890.18.j.doc
(c) (pg. 474 of the Petition) :: The concept of the Fire in the form of molten metal or shining metal being a divine judge is underlying the later belief that at the renovation all souls will be made to pass through a stream of molten metal. The souls of the holy would not thereby experience any pain, but those of the wicked shall have to bear afflictions and punishment of the ordeal.
(pg. 395 of the book)
(d) (pg. 476 of the Petition) :: The Author has referred to the Kusti which is made of 72 filaments of wool, woven into a belt. It passes round the waist thrice - with four knots, two in the front and two at the back. The kusti is 'boundary'; and it is the boundary of keeping ourself within the boundary of religious duty. The circles represent three kasa, 'boundary lines' around the body.
(pg. 407 of the book)
(e) (pg. 476 of the Petition) :: Sadro - a protection against evil vices and evil forces. The Sadro and Kusti form a magnetic circuit around physical body, which if properly kept, protects one from evil forces, and leads one on the path of piety and duty.
(pg. 407 of the book)
(f) (pg. 477 of the Petition) :: All Zoroastrian Fire-temples and the places of worship are ritually purified and consecrated places, and hence they are meant only for the Zoroastrians. Even the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 ::: 393 wp_2890.18.j.doc Zoroastrians - both males and females, priests and laymen - have to observe certain rules of ritual purification, particularly when a Zoroastrian wishes to enter a Fire-temple or to attend a ceremony. Before entering a Fire temple, a Zoroastrian must have taken bath, must have put on proper dress, and must have performed the Kusti ceremony.
(pg. 412 of the book)
(g) (pg.477 of the Petition) :: The zoroastrian fire-temples and places of worship are specially built with various boundary lines, known in the Avesta as karsha 'a furrow, a channel' Phl. kash. Kish. These boundary lines are furrows or channels, drawn on the ground or constructed on the floor, which mark and enclose ritually purified and sanctified place for consecrated Holy Fire or for ritually purified ceremonial utensils, and for performing the ceremonies of high order. These furrows are also known in Parsi Gujarati as pavi (boundary lines) for ritually pure things (pav, Skt. Pavaka) also the boundary lines enclosing the sanctified place for ritually pure ceremonial utensils'.
(pg. 412 of the book)
(h) (pg. 478 of the Petition) :: The consecrated Holy Fire is kept in a sanctum, which is a specially constructed chamber, bounded by walls, and set apart by the boundary lines. Only the priests having physical, mental, spiritual, moral, and academic qualifications are ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 ::: 394 wp_2890.18.j.doc authorized to enter the sanctum. But even a priest thus authorized must possess additional special ritual qualifications at the time of entering the sanctum: (1) he must have undergone Barshnum ceremony, (2) he must be observing the rules of purificatory rites, (3) he must have put on proper dress including Av. Paitidana 'a mouthveil', later padam, and (4) he must have offered daily prayers and performed dedicatory rites. These rules are observed to preserve ritual purity in accordance with the principles of Asha, Khvarnah and Yaozda.
(pg. 413 of the book) [v] (pg.435-436 of the Petition) :: The High Priests have in their affidavit stated that "It is believed that there is a constant requirement for the holy fire to be connected with Mother Earth. The connection has to be an uninterrupted connection with the core and the centre of the earth from which the vibrations and waves emanate". The High Priests have further stated that "During the process of consecration and enthronement, the holy fire is linked spiritually, to the earth, from which it draws sustenance." The High Priests in their affidavits have stated that according to religious injunctions, long standing customs and traditions, one can never perform the inner liturgical ceremonies (Pav Mahal ceremonies) on an elevated place (e.g. on the upper floor of a house or building). These ceremonies are to be necessarily performed on the ground floor, that too with absolute uninterrupted connection to the Mother Earth. The idea is that there should be no ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 ::: 395 wp_2890.18.j.doc dynamic motion or movement beneath the precincts of the Atash Behram. Therefore, if a tunnel were to be made beneath the Atash Behram, it would be considered to be on an elevated level, and its paivand or connection will be irretrievably lost. [vi] (pg. 483 to 488 of the Petition) :: Article "Select Ritual Aspects of the Gathas and their Continuity in the Later Tradition" by Vada Dastur Firoze M. Kotwal.
(a) (pg. 484 of the Petition) :: The learned Author has observed that "The reverence for fire is central to the faith. Fire is not a mere symbol as some people suggest, but, I affirm that it is recognized to be strongly allied to the Truth and therefore, to Ahura Mazda. xxxxx xxxxx xxxxx xxxxx xxxxx The sacred fire is an important vehicle of religious experience for the modern Zoroastrian, as well.
(pg. 132 of the book)
(b) (pg. 488 of the Petition) :: Kusti ritual is performed to bring about a fulfillment of that which is "most furthering". In other words, everytime the kusti ritual is performed by a Zoroastrian, there is an unswerving commitment to promote the Will of Ahura Mazda.
(pg.136 of the book) [vii] (pg. 492-496 of the petition) Article "Khordeh Avesta" (page-
492) translated into English with Copious Explanatory Notes. In this, the significance of kash has been discussed. (The Creator Ahura Mazda speaks) : I accept (the man who) draws three 'Kash' (or ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 ::: 396 wp_2890.18.j.doc furrows) as the righteous man; I accept (the man who) draws six furrows as the righteous man : I accept (the man who) draws nine furrows as "the perfectly righteous man.
Explanation :- In this paragraph there occurs a subject regarding the drawing of 'Kash' (the furrows). One should understand that he should not remain at ease after drawing the furrows only, but after this, certain ceremonies are enjoined to be performed, the details of which are not given here i.e. the act of operating the ceremony by drawing these furrows. Prior to performing the "Pav Mehel"
ceremonies of the Zoroastrian Religion, a 'Kash' or a circle is drawn round the place where that ceremony is performed; its significance is that during the performance of the ceremony no pollution, impurity or filth can exercise its evil influence over the place.
(pg. 207-208 of the book) [viii] (pg.497-500 of the Petition) Affidavit dated 11.7.2018 made by Ervad Dr. Parvez Minocher Bajan, a student and scholar of Zoroastrianism. He has been confirmed a doctorate by the University of Bombay in Avesta Pahlavi, the language in which religious scriptures of Parsi Zoroastrians are written. His thesis concerning the spiritual significance of tying the kusti (Yagnopavit Janoi) which is the sacred thread tied by every Zoroastrian around his waist with the intent of creating a protective circuit around it.
(pg.503 to 508 of the Petition) :: Along with the affidavit, article ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:13 :::
397 wp_2890.18.j.doc dated 27.2.1955 from "Parsi Avaz" was annexed. Said Article refers to (1) sanctified land of Atash Behram, (2) divine edifice and precinct of Atash Behram, (3) sacred Kash of Atash Behram. The conclusions drawn are that Atash Behram Saheb is a living, throbbing entity that dutifully performs the tasks that have been entrusted upon Him by His Divine Father.
[ix] (pg.512-514 of the Petition) :: Writings about the Zoroastrian Religion and Ceremonies (A collection of Articles written by Vada Dasturji Feroze M. Kotwal written at different times published in the form of a book)- 1994 - Mumbai, which states that if any movement takes place below Karshas then it vitiates the religious observations. The Author also stated that in case beneath the flooring of the upper floors, the invisible spiritual connection ('paywand') with Spenta Armaiti, the divinity presiding over the earth cannot be maintained.
279. The petitioners contend that
(a) There are three grades of sacred fires: (i) the sacred fire of Atash Behram, which is of the highest grade; (ii) the sacred fire of the Atash Adaran; and (iii) the sacred fire of Atash Dadgah. The concerned Atash Behrams house all three forms of fire. (see page-6, para-7)
(b) The entire structure of the two Atash Behram which house the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:14 ::: 398 wp_2890.18.j.doc sacred fire is a composite whole and is consecrated. (see page-6, para-9)
(c) The sacred precinct of Atash Behram is divided into three main parts. Innermost part is the sanctum sanctorum. Second part is the inner and outer sanctorum where prayers are offered. Third part extends till the compound wall. (see page-507)
(d) Additionally, the Karshas also indicate a protective consecrated area not only around the sacred fire, but also around the entire premises of two Atash Behrams. (see page-8, para-11)
(e) It is a belief of the community that there is a constant requirement for the sacred fire of the Atash Behrams to be connected with mother earth. (see page-6, para-9)
(f) An electromagnetic or geomagnetic field is generated in the core of the earth and is connected with the sacred fire in the Atash through waves and vibrations. If a tunnel is dug or Metro 3 is 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, ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:14 ::: 399 wp_2890.18.j.doc paras-12 & 13).
280. The petitioners further contend that as per the religious injunctions, long standing customs and traditions of the Community, religious services are to be performed on the ground floor with uninterrupted connection to the mother Earth. If a tunnel is constructed beneath the structures, the sanctum sanctorum would be considered on an elevated level and the connection would be deemed to be lost. The fire is surrounded by spiritual circuits which act as protective barriers. The moment the Metro Tunnel encroaches underneath the premises, the spiritual circuits will be breached. If the tunnel is allowed to be constructed underneath the structure, it would lead to complete desecration of the Atash Behrams in turn leading to a spiritual disaster for the entire community. The sacred precinct of Atash Behram is divided into three main parts. Innermost part is the sanctum sanctorum. Second part is the inner and outer sanctorum where prayers are offered. Third part extends till the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:14 ::: 400 wp_2890.18.j.doc compound wall.
281. The land of Atash Behram is demarcated from surrounding environment by karsha. Said karsha cannot be drawn on hollow surfaces because if any movement were to take place below the karsha, then it would vitiate the religious performance and sanctity of ceremony. Karshas surround the fire and act as protective barrier. The place where the Atash Behram is consecrated, isolated and ritualistically purified and same cannot be interrupted or violated by passing of tunnel underneath the structures.
282. I have carefully perused the entire material on record. After perusing the material on record, I do not find that the petitioners have adduced cogent evidence in the form of any scriptural or textual evidence to substantiate their contentions. The materials produced by the petitioners do not substantiate the petitioners claim that :
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(a) the entire structure of the two Atash Behrams which house the sacred fire is a composite whole and is consecrated. The sacred precinct of Atash Behram is divided into three main parts.
Innermost part is the sanctum sanctorum. Second part is the inner and outer sanctorum where prayers are offered. Third part extends till the compound wall. In the Book "Outlines of Parsi History" by Hormazdyar Dastur Kayoji Mirza published in the year 1974, it is stated at page-412 (page-477 of the petition) that "...........All Zoroastrian fire-temples and the places of worship are ritually purified and consecrated places and hence they are meant only for the Zoroastrians. ........" However this is not supported by any material in the form of scriptures, religious texts etc. At the highest that is the opinion of the learned Author. Even if for the sake of argument we accept that the petitioners have established that all fire temples are consecrated places, still they have not established that the entire structure of two Atash Behrams, which house the sacred fire is a composite whole. It is undisputed position that the uptunnel does not pass beneath the sanctum sanctorum of both the Atash Behrams. The petitioners have not established that if uptunnel passes beneath the boundary of Atash Behrams 60 ft. to 65 ft. deep below the ground, it will descecrate / defile the Atash Behrams. The petitioners and the persons belonging to Zoroastrian religion can perform the ceremonies and rituals in the two Atash Behrams without any ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:14 ::: 402 wp_2890.18.j.doc obstruction, hindrance and interference notwithstanding passing of uptunnel beneath the boundary of Atash Behrams 60 ft. to 65 ft. deep below the ground. The persons belonging to the Zoroastrian religion can freely profess, practice and propagate their religion as provided under Article 25 of the Constitution of India.
(emphasis supplied)
(b) the Karshas indicate a protective consecrated area not only around the sacred fire, but also around the entire premises of two Atash Behrams. The land of Atash Behram is demarcated from surrounding environment by karsha. A Karsha is a demarcation drawn on the physical ground in order to alienate a piece of land from its immediate surroundings and wherever such Karsha are drawn on physical ground, it created an invisible wall of self- protection for the objects enclosed within the karsha. There are nine Karshas drawn that provide the invisible talismanic vigil within the precincts of Atash Behram. Outermost Karsha provide the invisible vigil within the precincts of Atash Behram. The significance of karshas or spiritual circuits which surround the fire and they act as protective barrier. Hence, the place where the Atash Behram is consecrated, is isolated and ritualistically purified and therefore cannot be interrupted or violated by passing of tunnel underneath the structures. The affidavits of priests, High Priests and Articles written by the scholars do not ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:14 ::: 403 wp_2890.18.j.doc state anywhere that these karshas extend below the surface of the earth to the centre of the earth. The karsha would be breached if any construction activity is carried out underneath the structure. In fact it is material to note that the tunnel is being constructed within the basalt rock layer at the depth of 60 to 65 ft. below the surface.
(c) an electromagnetic or geomagnetic field is generated in the core of the earth and is connected with the sacred fire in the Atash through waves and vibrations. If a tunnel is dug or MML-3 is 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. As per the religious injunctions, long standing customs and traditions of the Community, religious services are to be performed on the ground floor with uninterrupted connection to the mother Earth. If a tunnel is constructed beneath the structures, the sanctum sanctorum would be considered on an elevated level and the connection would be deemed to be lost. The fire is surrounded by spiritual circuits which act as protective barriers. The moment the Metro Tunnel encroaches underneath the premises, the spiritual circuits will be breached.
(d) if the tunnel is allowed to be constructed underneath the structure, it would lead to complete desecration and defilement of the Atash Behrams in turn leading to a spiritual disaster for the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:15 ::: 404 wp_2890.18.j.doc entire community.
283. In my opinion, it is mere belief of the community that there is a constant requirement for the sacred fire of Atash Behrams to be connected with mother Earth and that the fire is surrounded by spiritual circuits which act as protective barriers. The moment the Metro Tunnel encroaches underneath the premises, the spiritual circuits will be breached.
284. I, therefore, conclude that the petitioners have utterly failed to establish basis for assumption of existence of fundamental right under Article 25 of the Constitution of India.
285. Whether the petitioners have established that :-
(i) the entire Atash Behram is a composite whole and include within its definition, the entire premises of the Atash Behram;::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:15 :::
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(ii) if the tunnel is constructed beneath the structure the sanctum sanctorum could be considered on an elevated level and the connection would be deemed to be lost.
(iii) the fire is surrounded by spiritual circuits which act as protective barriers and the moment the Metro Tunnel encroaches underneath the premises, the spiritual circuits will be breached.
(iv) if the tunnel is allowed to be constructed underneath the structure, it would lead to complete desecration of the Atash Behrams in turn leading to a spiritual disaster for the entire community.
(v) any construction underneath the Atash Behrams would disrupt the uninterrupted connection of the sacred fire and the structure with the Earth, and would breach the karshas surrounding the structures causing desecration and defilement of the Atash Behram.
(vi) Karshas could not be drawn on hollow surfaces of the earth and that such Karshas would be breached if any construction activity is carried out underneath the structure, are an essential and integral part of the Zoroastrian religion.
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286. In the decision of Sabarimala44, the Apex Court has held that essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. Nobody can say ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:15 ::: 407 wp_2890.18.j.doc that essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the nonessential part or practices.
287. The Apex Court referred to the decision of Durgah Committee's5 case, where Apex Court has distinguished for the first time, between 'superstitious beliefs' and 'religious practice'. It was held that apart from engaging in a judicial enquiry to determine whether a practice claimed to be essential was in fact grounded in religious scriptures, beliefs, and tenets, the Court would 'carefully scrutinize' that the practice claiming constitutional protection does not claim superstition as its base. This was considered a necessary safeguard to ensure that superstitious beliefs would not be afforded constitutional ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:15 ::: 408 wp_2890.18.j.doc protection in the garb of an essential religious practice.
288. In Sabarimala's44 case it was also held that although what constitutes essential religious practice must be decided with reference to what the religious community itself says, yet, the ultimate constitutional arbiter of what constitutes essential religious practice must be the Court, which is a matter of constitutional necessity.
289. In paragraph-32 of the concurring judgment by Dr. D.Y. Chandrachud, J. in Sabarimala's44 case, it was held that while the Court would take into consideration the views of a religious community in determining whether a practice qualified as essential, this would not be determinative.
290. In paragraph-120 of the judgment by Deepak Misra, C.J.I. and A.M. Khanwilkar, J., reference was made to N. Adithayan's23 case. In that case, it was held that as to what really constitutes an essential part of religion or religious ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:15 ::: 409 wp_2890.18.j.doc practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion.
291. In paragraph-121 of that decision, reference was made to the decision of Second Anand Marg's9 case, where it was held that what constitutes an essential or integral part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. (See the decisions in Srirur Mutt's1 case, Sardar Syedna's3 case and Seshammal's6 case).
292. In paragraph-21.6 of the concurring judgment of R.F. Nariman, J. in Sabarimala's44 case, it was held that it is only the essential part of religion, as distinguished from secular activities, that is the subject matter of the fundamental right. Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered as essential parts of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:15 ::: 410 wp_2890.18.j.doc religion. Matters that are essential to religious faith and/or belief are to be judged on evidence before a court of law by what the community professing the religion itself has to say as to the essentiality of such belief. One test that has been evolved would be to remove the particular belief stated to be an essential belief from the religion - would the religion remain the same or would it be altered.
293. Applying the tests laid down in Sabarimala's44 case, I do not find that the petitioners have established that items No.(i) to (vi), as enumerated hereinabove, are essential and integral part of the Zoroastrian religion. I find merit in the submission of Mr. Aney that it is belief of the Parsee community that there is a constant requirement for the sacred fire of the Atash Behrams to be connected with mother earth and that an electromagnetic or geomagnetic field is generated in the core of the earth and is connected with the sacred fire in the Atash through waves and vibrations. If a tunnel is dug or MML-3 is ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 ::: 411 wp_2890.18.j.doc operated under the premises of Atash Behrams, the spiritual circuits will be breached and negative forces will attack holy fire, thus diminishing its spiritual powers. These beliefs have nothing to do with the Zoroastrian religion or faith. The petitioners have failed to establish that these beliefs are integral to Zoroastrianism. Mere faith or belief of the Parsi community would not render these beliefs for protection under Article 25 of the Constitution of India. Except in the form of affidavits of High Priests, Priests of Parsi community, the petitioners have not adduced any evidence in the form of scriptures, religious texts etc. in support of their belief. It is the belief of the petitioners that karshas extend beneath the earth's surface to the centre of the earth. The material produced by the petitioners, however, no where state that these karshas extend underneath the structure or that such karshas would be breached if any construction activity is carried out underneath the structure. The opinions expressed by the High Priests cannot be considered as an ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 ::: 412 wp_2890.18.j.doc essential religious practice as it does not derive its basis from any religious texts or scriptures. No reference is made to any such text or scripture. It is belief of the petitioners that the fire connected to the centre of the earth and such connection will be breached if any construction work is carried out under the Atash Behrams. The petitioners have failed to adduce any evidence in the form of any religious texts or scriptures to demonstrate this fact.
294. Mr. Seervai submitted that the Articles written by the scholars and the affidavits of the High Priests and Priests relied by the petitioners clearly establish that what is stated in the Petition is not mere ipse dexit of the petitioners. There is unanimity among the High Priests, Priests, old and new Articles written by the scholars. Since the High Priests have made affidavits substantiating the case of the petitioners, the Court has to accept the case of the petitioners that what is stated therein is an essential and integral part of Zoroastrian religion. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 :::
413 wp_2890.18.j.doc He heavily relied upon paragraph-31 of the concurring judgment of R.F. Nariman, J. in Sabarimala's44 case.
295. I do not find any merit in this submission for more than one reason. In the first place, factually it is incorrect to say that there is unanimity among the High Priests. In paragraph- 20 of the affidavit dated 26.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil), the affiant has made reference to Article reported in English Newspaper "The Guardian" titled "Dark forces will be unleashed: the fire temple v. the Mumbai metro"
dated 14th December, 2017, which quotes High Priest of the Wadia Atash Behram, respected Vada Dasturji Firoz M. Kotwal saying that "Neither Zoroastrianism nor its rituals are in any danger from the metro tunnel". The Article further quotes the High Priest in the following manner :
"The MMRC team convinced us with concrete proof that there was no danger at all to the fire temple, and the chief minister gave us a personal assurance of safety. So the hue ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 ::: 414 wp_2890.18.j.doc and cry is baseless. Kotwal says. "Neither Zoroastrianism nor its rituals are in any danger from the metro tunnel."
"Kotwal also says that the "mystic circuits" cited in the petition are not a part of the ancient texts of Zoroastrianism in its 6th Century incarnation, but were introduced by the 19th Century Kshnum cult..."
Again the Article quoted disagreement expressed by the respected Vada Dasturji Khurshed Dastur, the High Priest of the Iranshah Atash Behram, Udvada, Gujarat as under :
"The high priest of Zoroastrianism's holiest shrine (at Udvada in neighbouring Gujarat) and the community's representative in the secular National Commission for Minorities is similarly concerned that the petition is fear run amok. "It is the work of a minuscule group with nothing better to do," says Dastur Khurshed Dastur. "How to deal with eccentric people with closed minds out to whip up a fear psychosis?"
296. It is interesting to note that Dr. Firoze M. Kotwal has made affidavit dated 28.5.2018. (pages 159-161). In paragraph-3 of this affidavit he stated that he had attended a meeting in or around 9.11.2017 with the Government outlining his concerns ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 ::: 415 wp_2890.18.j.doc with respect to the proposed MML-3 tunnel being bored under the H.B. Wadiaji Atash Behram and Zarthosti Anjuman Atash Behram. He stated further thus :
"In the said meeting, I was made to understand that the metro tunnel would simply touch the periphery of the Atash Behrams. Infact, I now understand that the proposed metro tunnel would pass right under the aforesaid two Atash Behrams which is not permissible as per the Zoroastrian religious beliefs. I say that as a result I am opposed to the metro tunnel passing under the Atash Behrams."
[Emphasis supplied]
297. It is, however, material to note that though the affidavit is made on 28.5.2018, the affiant has not made reference to the Article reported in English Newspaper "The Guardian"
titled "Dark forces will be unleashed: the fire temple v. the Mumbai metro" dated 14.12.2017. Said Article infact quoted what Dr. Firoz M. Kotwal had stated about MML-3. It is further interesting to note that no rejoinder is filed by Dr. Firoz M. Kotwal contradicting what is stated in paragraph-20 of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 ::: 416 wp_2890.18.j.doc affidavit-in-reply dated 26.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) of respondent No.4. Respected Vada Dasturji Khurshed Dastur, the High Priest of the Iranshah Atash Behram, Udvada, Gujarat has also expressed his disagreement and had quoted that the petition is fear run amok and it is the work of a minuscule group with nothing better to do. How to deal with eccentric people with closed minds out to whip up a fear psychosis ?. The petitioners have not filed affidavit of respected Vada Dasturji Khurshed Dastur. Thus, at least two High Priests have expressed their disagreement with what the petitioners have contended in the present petition. Secondly, in the Article dated 14.12.2017 respected Vada Dasturji Dr. Firoz M. Kotwal stated that the "mystic circuits" cited in the petition are not a part of the ancient texts of Zoroastrianism in its 6 th Century incarnation, but were introduced by the 19 th Century Kshnum cult.. In paragraph-121 of judgment of Dipak Misra, C.J.I. and A.M. Khanwilkar, J. in Sabarimala's case it is observed that ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 ::: 417 wp_2890.18.j.doc there cannot be additions or subtractions to essential and integral part. Alterable parts or practices are definitely not the "core" of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishment to the non-
essential part or practices. It is permanent essential parts that is protected by the Constitution. Thirdly, the petitioners have not instituted the present petition in a representative capacity by following the procedure laid down under Order I Rule 8 of C.P.C.
If the petitioners were to institute Petition in a representative capacity, perhaps the Court would have had benefit of large response of the Parsi Community from all over India. It is, therefore, not possible to accept the contentions of the petitioners that there is unanimity among the High Priests, Priests as also scholars who have written Articles.
298. In view thereof, I conclude that the petitioners have failed to establish that items (i) to (vi), noted as above, are integral and essential part of the Zoroastrian religion. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:16 :::
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(iii) Balancing the fundamental rights of the petitioners under Article 25 vis-a-vis other rights in Part-III of the Constitution of India :
299. Article 25(1) reads thus :
"25. Freedom of conscience and free profession, practice and propagation of religion.--
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion."
(Emphasis supplied)
300. A perusal of Article 25(1), extracted hereinabove, shows that said right is subject to public order, morality and health and to the other provisions of this Part. Part III consists of Fundamental Rights under Articles 14 to 32. The Chapter on Fundamental Rights encompasses the rights to (i) Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii) Freedom of Religion (Articles 25 to 28); (iv) Cultural and educational rights (Articles 29 and 30); and (v) Constitutional remedies (Article 32).
::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 :::
419 wp_2890.18.j.doc (Emphasis supplied)
301. In paragraph-13 of the concurring judgment, Dr. D.Y. Chandrachud, J. in Sabarimala's44 case, referred to the expression "subject to" appearing in Article 25(1) and has observed thus:
"13. The expression "subject to" is in the nature of a condition or proviso. Making a provision subject to another may indicate that the former is controlled by or is subordinate to the other. In making clause 1 of Article 25 subject to the other provisions of Part III without introducing a similar limitation in Article 26, the Constitution should not readily be assumed to have intended the same result. Evidently the individual right under Article 25(1) is not only subject to public order, morality and health, but it is also subordinate to the other freedoms that are guaranteed by Part III. xxxxxxxx xxxxxxx xxxxxxxx"
(emphasis supplied)
302. Thus Article 25 will have to be read subject to other provisions of Part III of the Constitution. In order to interpret Article 25 on one hand and other fundamental rights in Part-III on the other, it would be necessary to interpret these provisions ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 ::: 420 wp_2890.18.j.doc harmoniously keeping in mind that all rights under the Constitution have to be given their proper meaning and function. The harmonious construction of these provisions would indicate that any demand of the petitioners for enforcement of their fundamental rights under Article 25 must be balanced against the rights of the citizens at large. The citizens have access to the benefits and conveniences of the city, as also to live a life of dignity, work in comfortable environment, and partake in the wealth of the city. The State is under constitutional obligation to ensure that the citizen is not deprived of these benefits and conveniences. Any right of the petitioners to practice of their religion cannot be to the negation of the fundamental rights of the citizens. I accordingly hold that the fundamental rights claimed by the petitioners under Article 25 of the Constitution of India is subservient to other fundamental rights in Part-III of the Constitution of India.
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421 wp_2890.18.j.doc [2] STRUCTURAL SAFETY AND INTEGRITY OF TWO ATASH BEHRAMS IN QUESTION;
(i) Likelihood of damage to the existing structure :
303. Before I deal with this issue, it is necessary to refer to the provisions of the Metro Railways (Operation and Maintenance) Act, 2002 (for short 'Metro Act'). Chapter V deals with "opening of metro railway". Section 14 thereof lays down that the metro railway in the National Capital Region, metropolitan city and metropolitan area shall not be opened for the public carriage of passengers except with the previous sanction of the Central Government. The expression 'metropolitan area' is defined in Section 2(h) and lays down that it shall have the meaning assigned in Clause (c) of Article 243P of the Constitution. The expression 'metropolitan city' is defined in Section 2(ha) to mean the metropolitan city of Bombay, Calcutta, Delhi or Madras. Section 15 lays down the formalities to be complied with before giving sanction to the opening of metro railway by the Central Government.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 :::
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304. As mentioned earlier, Mumbai Metro Master Plan was first prepared in the year 2004 and has been amended at network level from time to time based on the revised and updated implementation plans. The present project of MML-3:
Colaba-Bandra-SEEPZ was formed by amalgamation of two lines of the original Masterplan; Line-3 (Colaba-Mahalaxmi-Bandra) and southern section (BKC-SEEPZ) of line-6 BKC-Airport-
SEEPZ-Kanjur Marg. The Project Implementation of Metro Line-3; Colaba-Bandra-SEEPZ has been taken by the fourth respondent in the year 2010. Accordingly, the Detailed Project Report (DPR) was prepared by Rites in November, 2011.
Notification dated 12.12.2011 was issued by the Managing Director of respondent No.4 detailing therein that a Social and Environmental Impact Assessment Study as per JICA guidelines. In this regard the alignment and station locations were notified and suggestions/objections for the same were ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 ::: 423 wp_2890.18.j.doc invited from concerned stakeholders in writing by respondent No.4. Important station locations as also details of the alignment were uploaded at www.mmrdamumbai.org. The project alignment plan was also displayed at following offices :
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.
305. As mentioned earlier, the project alignment and details were published in all prominent newspapers (in two languages) calling for suggestions and objections from the public with one month notice. To ensure wide publicity and information, the plan was also published at various Government Offices (Deputy Director of Town Planning, Government of Maharashtra; Chief Engineer, Development Plan; MCGM; ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 :::
424 wp_2890.18.j.doc Collector Mumbai City; Collector Mumbai Suburbs; and MMRDA). Respondent No.4 has not received any written suggestions or objections in response to the notice. A public notice for that purpose was published on 5.4.2012 in prominent newspapers in two languages. Public consultation/hearing was conducted on 11.4.2012. A detailed presentation was made to the audience who attended the public hearing on 11.4.2012.
306. It is not in dispute that the petitioners did not submit any objections and suggestions in pursuance of the notification dated 12.12.2011. Mr. Seervai submitted that the Website did not show the location of Kalbadevi Metro Railway Station. He submitted that only important station locations on the alignment, namely, Churchgate, Chattrapati Shivaji Terminus (CST), Girgaon, Mahalaxmi, Worli, Mahim, Bandra (BKC), Domestic & International Airport, MIDC and SEEPZ were shown. I do not find any merit in this submission. A perusal ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 ::: 425 wp_2890.18.j.doc of the plan of MML-3 line produced by the petitioners at Exhibit- B along with the affidavit-in-rejoinder of the petitioners dated 11.7.2018 shows the location of metro railway stations. Assuming in favour of the petitioners that the location of Kalbadevi Metro Station is not shown, nonetheless it is not disputed that the details of alignment were uploaded at said Website. Thus, it is abundantly clear that the alignment of MML-3 is passing beneath JSS Road. It was, therefore, incumbent upon the petitioners to have lodged objections / suggestions as also participate at the time of a detailed presentation made to the Public who attended public hearing on 11.4.2012.
307. A perusal of the entire Petition does not indicate that the petitioners have submitted any concrete material for changing the alignment of the proposed MML-3.
308. In support of the contentions, the petitioners have ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 ::: 426 wp_2890.18.j.doc relied upon following material :
i. Pre-construction Building Condition Survey Report for MML-3 (Colaba-Bandra-Seepz) (Exhibit-G, pages 84 to 98) ii. Copy of the MML-3 plan referred in paragraph-3(f) and annexed as Exhibit-B to the affidavit-in-rejoinder of the petitioners dated 11.7.2018 to the reply dated 26.6.2018 of respondent No.4.
iii. A copy of the report of the Architect Hafeez Contractor of the petitioners which proposes possible conceptual alternatives for realignment referred in affidavit-in-rejoinder of the petitioners dated 20.7.2018 to the affidavit-in-reply of respondent No.4 dated 16.7.2018 suggesting three alternatives / options for realignment. (pages 537-H to 537-J).
iv. The report dated 25.7.2018 made by Grace Consultants, marked as Exhibit-A to the affidavit dated 4.8.2018 made by petitioner No.1 Jamshed N. Sukhadwalla. (page 548F) v. Technical paper presented during the proceedings of the 2008 IACJ - IJME International Conference referring to the episode involving 'The Sao Paulo yellow line-4" referred in the petition at Exhibit-D in the affidavit dated 4.8.2018 made by petitioner No.1 Jamshed N. Sukhadwalla. (pages 558 to 564) vi. VJTI's report dated 9.8.2018. (pages 584 to 867) vii. Written submissions submitted by the petitioner after hearing was given by the Board of Directors of the 4 th respondent in ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:17 :::
427 wp_2890.18.j.doc pursuance of the order dated 23.5.2018 passed by this Court and in particular paragraph-V proposing alternatives on the basis of the Power-Point Presentation of the Architects appointed by the petitioners during the hearing with respect to possible preliminary options/solutions which available for realignment of the tunnel so that it would not pass under the Atash Behrams. These included detailed technical drawings and hard copies of the said power-point presentation.
309. As against this, respondent No.4 relied upon following material:
i. BCS report ii. Copy of the plan showing distance of tunnel from Wadiaji fire
temple and proposed Kalbadevi Metro-Station. (Exhibit-R, page- 142L) iii. The Buildings from Impacts of Tunneling and Excavation Works Report annexed along with the affidavit dated 26.6.2018 made by Shantaram Ganpat Dalvi, DGM (Civil) of the 4 th respondent. (pages 232-261) iv. Report of Five Directors dated 15.6.2018. (pages 272-410) v. Notification dated 12.12.2011 issued by the Managing Director of the 4th respondent. (page-411) vi. Feasibility Report of General Consultant of respondent No.4 dated 23.7.2018 submitting remarks to the proposal of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:18 ::: 428 wp_2890.18.j.doc petitioner forwarded to them. (pages 544-548 ) vii. VJTI's report dated 9.8.2018 (pages 584-602)
310. The present petition was instituted on 21.5.2018. At that time the petitioners have produced the Pre-construction Building Condition Survey Report for MML-3 (Colaba-Bandra- Seepz) at Exhibit-G, pages-84 to 98. The petition was moved before the Vacation Court on 23.5.2018. After extracting the prayers in the petition, the Court referred to the case pleaded by the petitioners in the Petition. In paragraph-5, the Court prima facie found force in the concerns expressed by the petitioners in the petition. In paragraph-6, the Court recorded acceptance of the suggestion made by the Court by the 4 th respondent that five members of the Board of respondent No.4 (for short, 'Committee') will give hearing to all concerned and submit its report along with its affidavit-in-reply to the Court on the adjourned date. The Advocate for respondent No.4, on instructions, also agreed that until the next date of hearing, respondent No.4 will not ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:18 ::: 429 wp_2890.18.j.doc carry out any drilling work beyond the boundaries of Atash Behrams. The Court, therefore, directed respondent No.4 that until the next date of hearing, respondent No.4 shall not carry out any drilling work beyond the boundaries of Atash Behrams. It was also clarified that respondents No.1 to 4 will not claim any equities in response to the submissions made by the petitioners seeking directions against respondents No.1 to 4 to realign the metro rail construction.
311. In pursuance thereof, the hearing was conducted by the Committee on 8.6.2018. The hearing was attended by the petitioners, their Advocates, representatives of M/s. Hafeez Contractors, the Architects nominated by the petitioners, High Priests & Priests as also the representatives and Trustees of both Atash Behrams and their Advocates.
312. In paragraph-7 the Commitee framed the questions ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:18 ::: 430 wp_2890.18.j.doc for deliberation to examine important points brought before it. Question No.2(a) was to the following effect :
2.(a) Whether the whole premises of both the Atash Behram are to be treated as 'one composite whole' or there is a distinction between the sanctum sanctorum, where the holy fire is enthroned, and the remaining parts of temple buildings.
313. The Committee observed that it would refrain from deliberating on religious beliefs and referred to the submissions made by the petitioners in the petition before this Court. The petitioners produced a page from a book of Dr. Sir J.J. Modi.
That page was attached as Annexure III to the report. After considering the book of Dr. Sir J.J. Modi, it was observed that said book clearly spells out the difference between the place of sacred fire i.e. sanctum sanctorum vis-a-vis the attached apartments i.e. Der-i-Meher. The apartments have also provisions of civic services such as sewer line, storm water drain, water line and electricity lines etc. They also provide amenities ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:18 ::: 431 wp_2890.18.j.doc like toilets within their premises. The Committee, therefore, considered that within the Atash Behram premises the attached apartments, where liturgical ceremonies are held or areas where civic amenities and utilities are laid, cannot be considered at equal footing in religious importance as of the place of sacred fire i.e. the sanctum sanctorum. Similar is the situation in religious premises of other faiths where sanctity of core worship area is much higher than the sanctity of other areas around the sanctum sanctorum.
314. The Committee thereafter dealt with question No.2(b) in the following manner:
2.(b) Whether the constructing tunnel beneath ground is tantamount to make Atash Behram area elevated ?
On the issue of the Petitioners feeling that boring of tunnel in the premises would result in the premises being considered to be on an 'elevated' level and the connection with the ground would be deemed to be breached; the Committee, barring religious connotations, did not find any scientific or technical ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:18 ::: 432 wp_2890.18.j.doc merit in this argument. An underground tunnel doesn't change the R.L. of the surrounding ground. A plain dictionary meaning of 'elevated' as an 'adjective' is 'situated or placed higher than the surrounding area' and 'raised up, especially above the ground or above the normal level: an elevated platform; an elevated pulse.'
315. The Committee considered the collapse of a part of the Jer Mehal Annex building. The Committee thereafter proceeded to consider question No.4, namely, are the building structure of Wadiaji Atash Behram and Anjuman Atash Behram are at risk of damage due to construction of metro tunnel and station, either on its present location or at a shifted location. The Committee observed thus:
"To analyse this aspect, the Committee has gone into details of bidding process in selection of competent contractors, competent consultants, conditions in the contract and the professionalism adopted in the execution process. All these factors have a bearing on the subject concern as any outcome is subject to ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:18 ::: 433 wp_2890.18.j.doc processes involved. This is also a fact that world over, including heritage parts of cities like Rome, Barcelona, Istanbul, Madrid etc., Metro tunnels and stations have been successfully constructed.
The entire metro line 3 project, comprising of twin tunnels of 5.8 m finished diameter to be constructed by Tunnel Boring Machines (TBM) and 26 underground stations, apart from other associated works, is a prestigious urban railway project funded by the International funding agency Japan International Cooperation Agency (JICA), Government of India and Government of Maharashtra. The work of tunneling and underground stations is divided into 7 packages for which a very rigorous international prequalification process was carried out for short listing of contractors. Through this international process in which not only their financial and technical capability of executing similar works were analyzed, technical competence of their design consultant company was also assessed. 9 firms were shortlisted for bidding. These firms were then allowed to participate in the further bidding process. After a very detailed and rigorous bidding process, which was scrutinized by international consultants, all the seven packages were awarded to ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:19 ::: 434 wp_2890.18.j.doc different construction majors. Every stage of this bidding process was scrutinized and vetted by the international funding agency, JICA. Selected contractors are joint ventures of major Indian contractors with major international construction companies. The company that has been selected for the work in the subject area is HCC-MMS JV. M/s. Hindustan Construction Company (HCC) are a major Indian construction company while M/s. Mosmetrostroy (MMS) are a major Russian company, both with vast experience of tunneling and station construction works in urban condition. Even the selection of the General Consultants for the project was on 'Quality and Cost Based Selection' process where the past relevant experience of consulting companies and; qualification and relevant experience of key experts were important consideration.
Designing of tunnels and underground stations are specialized field for an important and critical infrastructure like an urban commuter metro rail where large number of commuter travel every day. Therefore, only professional agencies, that meet prespecified criteria, carry out planning and design of ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:19 ::: 435 wp_2890.18.j.doc works, be it temporary or permanent in nature. The agency is called Detailed Design Consultant (DDC) in contract terms. The contract also requires deployment of another expert agency of equal or higher capabilities to independently check the plans and designs prepared by the DDC. This independent expert agency is called the Lead Design Checker (LDC). Further, after a design is prepared and checked by DDC and LDC respectively and all their observations are addressed and incorporated, it is submitted by the Contractor for check and clearance from the General Consultant (GC) deployed by Mumbai Metro Rail Corporation Limited (MMRCL). A professional team of the General Consultants (GC) again checks these plans and designs before giving their 'No Objection'. The GC for this project are a group of four major international engineering consulting firms.
Another crucial aspect in safe construction is selection of technology and equipment for tunneling operations. Tunneling work between any two stations will be carried out by Tunnel Boring Machines (TBM). The Tunnel Boring Machines, the most crucial resource, are designed and customized specifically to meet local geological and contractual conditions. Both the tunnel ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:19 ::: 436 wp_2890.18.j.doc boring machines (TBM's) procured for this work are manufactured by M/s. Terratec, a major Australian TBM manufacturer, in their China facilities. Further during execution, each component of the work is carried out as per approved designs and detailed Method Statement; and supervised by the professional team of engineers. Accordingly, detailed design and method statement for tunneling has also been checked and cleared for the execution by the DDC, LDC and GC. Detailed design of Kalbadevi Station is presently under review and no work has been undertaken at site. It is also seen that there is a very detailed laid down protocol for protection of the heritage buildings as well as of other buildings from the impacts of tunneling and excavation works on this project. This is a 4-stage process that consists of:
Assessment of existing building condition and assigning allowable impact limit categories.
Design the station and tunneling excavation method impacts to be within limits of the adjacent buildings categories Design and installation of protection and mitigation measures where necessary.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:19 :::
437 wp_2890.18.j.doc Close and continuous monitoring during construction and revising design as per steps 2 and 3.
xxxx xxxxxx xxxxxx xxxx xxxxxx xxxxxx As per the Building condition survey (BCS) report, the Anjuman Atash Behram is classified as 'Slight' and Wadiaji Atash Behram as 'Moderate' building category. Both these buildings are heritage structures but in much more healthier condition than many other buildings in this area which are categorized as 'Severe' and 'Very Severe' category. The construction protocols for this work are designed to carry out construction work in the close vicinity of 'severe' and 'very severe' buildings, including tunneling beneath them. As per the present status 170 meter of tunneling has already been carried out in the lower track tunnel below several buildings (some of these buildings are in category of 'Severe' and 'Very Severe'), in the Kalbadevi area without settlements, tilt or change in the crack width." ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:19 :::
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316. The Committee reproduced details of the buildings etc. in a tabular form and thereafter observed thus :
"In addition to the above statistics of 170 m of tunneling work in Kalbadevi area, on overall, more than 3.5 km of tunneling has already been carried in the Mumbai city without any complications. Further, deep excavations up to 30 m has been achieved at many locations, including CST Metro station, without any adverse impact on surrounding area, buildings or structures. 75% of the secant piling work on the project has been completed. One of the Metro tunnels has already crossed the Versova-Andheri-Ghatkopar 'Metro Line 1' at Marol Naka without any impact on the line. Metro tunnel has also passed below an under-construction high rise building, and below many other sensitive structures. Monitoring records do not show any adverse impact in any of these locations.
Apart from supervision by contractor's professional team, from MMRC side the work is supervised by the General Consultants (GC) which area a group of four major international ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:19 ::: 439 wp_2890.18.j.doc engineering consulting firms. GC has deployed 15 odd international key experts in the fields of supervision of tunneling and stations, designing, Architecture, Safety and Quality Assurance etc. This is in addition to a large number of other local professionals and support staff comprising engineers, architects, designers, technicians with varied national and international experience deployed by the GC; and also, international and local experts deployed by contractors and their designers to carry out this work.
Therefore, a very detailed and elaborate institutional framework and protocol, where emphasis of construction philosophy is to professionally handle each and every component of the work and to limit impacts on the surrounding buildings and structures within permissible limits has already been put in place. Moreover, the buildings and structures are also monitored with sensitive instruments for any early signs of distress. Heritage buildings, weak and dilapidated buildings and sensitive structures are monitored 24/7 online with sensitive instruments.::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:20 :::
440 wp_2890.18.j.doc The Committee can, therefore, state that there is no likelihood of any damage happening to any of the Atash Behrams."
317. The Committee thereafter proceeded to consider question No.5 dealing with drying up of the wells in the premises of both the Atash Behrams due to ongoing tunnel or station construction works. It was noted that as a part of construction protocol, the contractors for the work have already started monitoring water level in the wells of both the Atash Behrams. There are four wells in the Wadiaji Atash Behram and three wells in the Anjuman Atash Behram. Nearest well in the Wadiaji Atash Behram is 42 ft. (12.84 meters) away from the nearest point of the tunnel, while the same in the Anjuman Atash Behram is 15 ft. (4.6 meters). These wells are in the top soil layer of about 20 ft. deep, while the tunnel is in the rock; and is at 60-65 ft. deep from ground level. Thus, there is a clear vertical space of 42-46 ft. of rock mass between bottom of wells to ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:20 ::: 441 wp_2890.18.j.doc the top of the tunnel. Respondent No.4 had already given undertaking dated 10.11.2017 to the Vada Dasturji Dr. Firoze M Kotwal and Vada Dasturji Khurshed Dastoor that there is no possibility of drying up of these wells due to metro construction and to keep a check on water level in the wells, respondent No.4 will monitor the water levels in the vicinity by installing instruments.
318. The Committee thereafter in question No.6 considered the feasibility of shifting the tunnel alignment by nine meters as per the concept proposal given by the Architects of the petitioners. It was observed that the alternate concept plan presented by the petitioners' Architects was forwarded to the GC who have the technical competency to analyse these plans on relevant technical parameters. The GC vide their report dated 13.6.2018 have carried out a detailed analysis. They have brought out that the petitioners and their architects ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:20 ::: 442 wp_2890.18.j.doc actually could not read the plans correctly. They misunderstood that the lower track of metro line was below the Atash Behrams, while it was the upper track which is beneath the premises of Atash Behrams. The extent of the possibility that the petitioners and their architects were visualizing does not exist. The GC however analyzed the concept plans given to them with due correction.
319. The GC in their report found that the proposed plan does not provide for essential planning requirements for passenger movement on platforms and queue length before a staircase or an escalator. It does not meet the requirements of egress capacity in accordance with the NEPA 130 for fire safety either. The plan also does not meet the requirements of barrier free accessibility of differently abled persons. Conforming to these planning requirements is essential for proper passenger movement during normal operations as well as during a fire ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:20 ::: 443 wp_2890.18.j.doc emergency. Not only on planning requirements, GC further brought out that the proposed plans infringe on the technical requirements of housing essential station amenities and services. It compromises on the need of minimum rock column required for geological stability of the surrounding ground during construction. It is important to note that in the urban city of Kalbadevi, old and dilapidated buildings exist near the construction site and geological stability of ground is of utmost importance for safe construction. The fact that even an established architect of the repute engaged by the petitioners could miss these functional, technical and operative requirements of the Kalbadevi station, which is to be designed for a metro system of design capacity of 72,000 PHPDT and related station load, reinforces the need for a competent domain expert Detailed Design Consultants (DDC) to handle work of such magnitude and complexities.
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320. The Committee noted that the petitioners architect do not possess any similar expertise or past experience of planning and designing of a underground metro station. The Committee considered that shifting of tunnel alignment by 9 meters as per concept plan given by the petitioners is neither technically feasible nor workable.
321. Along with the affidavit-in-rejoinder of the petitioners to the affidavit-in-reply of respondent No.4 dated 16.7.2018, the petitioners annexed Architect Hafeez Contractor's report (pages- 537H to 537J). Shantaram Ganpat Dalvi, DGM (Civil) of respondent No.4 filed affidavit dated 23.7.2018 in response to that affidavit. Along with that affidavit, feasibility report of General Consultant dated 23.7.2018 was enclosed. The GC analyzed the proposals / options submitted by the petitioners. After analyzing the proposals in respect of station design, it was concluded that the station design proposals in all three options ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:20 ::: 445 wp_2890.18.j.doc made by the architect of the petitioners is not found feasible.
322. The petition was thereafter heard on 25.7.2018. The Court issued Rule. In paragraph-8, a query was made by the Court as to whether respondent No.4 has taken an opinion of an independent expert agency regarding the possibility of any damage being caused to the structures of the subject Atash Behrams and the wells therein and the response of the learned Senior Counsel of respondent No.4 that though there are many experts available with the 4th respondent as well as the contractor appointed to carry out the job, the opinion of an independent agency has not been taken, was noted.
323. In paragraph-10, the Division Bench observed that admittedly, the 4th respondent does not have the benefit of an opinion of an independent agency of some repute on the question of the Metro Railway work causing damage as apprehended by ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:20 ::: 446 wp_2890.18.j.doc the petitioners.
324. In paragraph-12, it was observed that in the interest of both the petitioners and the respondents an independent agency like VJTI after making a study submits a report to this Court. The report will be very relevant for considering the prayer for interim relief. The draft terms of reference agreed by and between the petitioners and the 4 th respondent have been tendered on record and marked as 'R-1' for identification.
325. In paragraph-14, the Division Bench noted that in terms of ad-interim order passed on 23.5.2018, the Committee has submitted a report. The Court accordingly appointed VJTI as an expert agency to examine the impact of the proposed metro work including the tunnelling and construction of the proposed Kalbadevi station, both during its construction as well as operation of the metro rail (a) on the structural safety of the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:21 ::: 447 wp_2890.18.j.doc Wadiaji and Anjuman Atash Behram, and (b) on the water levels including any contamination in the wells situate within both the above Atash Behrams. The Court issued other directions as well.
326. Mr. Seervai heavily relied upon the observations made by Division Bench in the orders dated 23.5.2018 and 25.7.2018. On the other hand, Mr. Aney submitted that these observations are prima facie. Insofar as the order dated 23.5.2018 is concerned, at that time response of respondent No.4 was not on record. Insofar as the order dated 25.7.2018 is concerned, he submitted that in pursuance of the order the VJTI has submitted report dated 9.8.2018.
327. I do not find that the orders dated 23.5.2018 and 25.7.2018 conclusively determine the rights of the parties. These orders express prima facie opinions. In fact in pursuance of the order dated 23.5.2018 the Committee submitted its report dated ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:21 ::: 448 wp_2890.18.j.doc 15.6.2018, which I have extensively referred earlier. The Committee carefully analyzed the material on record and insofar as the fundamental rights under Article 25 of the Constitution is concerned, the Committee substantially followed the dictum laid down by the Apex Court that the ultimate constitutional arbiter of what constitutes essential religious practice must be the Court, which is a matter of constitutional necessity.
328. In paragraph-14 of the order dated 25.7.2018, the Division Bench made a passing reference to the Committee's report. A perusal of that order, however, does not indicate that the Court considered in detail the report submitted by the Committee. Said order also recorded that respondent No.4 did not obtain an opinion of an independent expert committee. I have already referred to the provisions of Sections 14 and 15 of the Metro Act. I have extensively dealt with the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:21 ::: 449 wp_2890.18.j.doc implementation process of MML-3. In the implementation process, several experts are involved. After following due process of law, respondent No.4 has undertaken the implementation of the project. International Competitive Bidding (ICB) process was followed for implementation of the project. Mr. Seervai is not in a position to substantiate his contention that respondent No.4 has to take opinion of an independent expert regarding the possibility of any damage being caused to the structures of Atash Behrams. The building construction survey report is placed on record which deals with this aspect. The petitioners have not placed any report contradicting the BCS report. It is only in the event of conflicting reports produced by the parties the question of appointing independent expert agency arises. That apart, the Committee's report dated 15.6.2018 rules out even remote chances of causing damage to the two Atash Behrams. Still in order to satisfy itself that no damage will be caused to the structures of Atash Behrams, this Court thought it appropriate ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:21 ::: 450 wp_2890.18.j.doc to appoint an independent agency, namely, VJTI. As mentioned earlier, this Court also recorded in paragraph-12 of the order dated 25.7.2018 that it is in the interest of both the petitioners and the respondents that an independent agency like VJTI after making a study submits a report to this Court. The report will be very relevant for considering the prayer for interim relief.
329. In pursuance thereof, VJTI had submitted the report dated 9.8.2018. Mr. Seervai has attacked that report heavily. I do not find any merit in this submission as at the cost of repetition the petitioners have not placed any concrete material on record contradicting the reports of respondent No.4. A perusal of VJTI's report dated 9.8.2018 shows that the report considered the test reports, scrutiny and review of design calculations and drawings, monitoring data, methodology of the work and the site inspection and recorded the conclusions to the following effect :
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451 wp_2890.18.j.doc "13.0 CONCLUSION :
After going through the inferences from test reports, scrutiny and review of design calculations and drawings, Monitoring Data, methodology of the work and site inspection, following conclusions are drawn; Effect of Tunneling work on safety of both Atash Behram buildings
1. The proposed tunnelling work (using TBM) for Metro line 3, passing under Wadiaji and Anjuman Atash Behram buildings shall not have adverse effect on the structures.
2. The proposed tunnelling work (using TBM) for Metro Line 3, passing under Wadiaji and Anjuman Atash Behram buildings, shall not have adverse effect on level and quality of water in the wells within the premises of both Atash Behrams.
Effect of Operation of Metro Rail (Line 3) on safety of both Atash Behram buildings
1. Operation of the Metro Rail, through the proposed tunnels passing under Wadiaji and Anjuman Atash Behram buildings shall not have adverse effect on the structures.
Effect of Proposed Construction of Kalbadevi ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:22 ::: 452 wp_2890.18.j.doc Station on safety of Wadiaji Atash Behram building
1. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atash Behram building shall not have adverse effect on this structure.
2. The proposed construction of Kalbadevi Station adjacent to Wadiaji Atah Behram building shall not have adverse effect on level and quality of water in the wells within the premises of Wadiaji Atash Behram."
330. Apart from that, the report also recommended the measures for achieving additional safety.
331. Mr. Seervai submitted that VJTI solely relied upon the data prepared and supplied by respondent No.4. The report submitted by VJTI is not an independent report. He submitted that respondent No.4 and even VJTI ignored the fact of controlled blasting which is to take place just 5 meters away from ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:22 ::: 453 wp_2890.18.j.doc Atash Behram. According to the report of VJTI, PPV is below 2.54 mm/sec which is a false and mischievous report. Mr. Seervai invited our attention to paragraph-11 of the affidavit of the petitioners dated 13.8.2018 in response to the report of VJTI dated 9.8.2018. He submitted that the very foundation of PPV is destroyed by the report prepared by VJTI.
332. As against this, Mr. Anturkar submitted that the order dated 25.7.2018 passed by the Division Bench of this Court directed VJTI to examine. The petitioners never sought any directions from this Court for collection of its own data by VJTI and not to use the data of respondent No.4. During the course of hearing the petitioners did not raise any objection about the validity or genuineness of the data collected by the 4 th respondent. In the absence of any direction from this Court and also any request from the petitioners, it was entirely within the discretion of VJTI either (a) to rely upon the data collected by ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:22 ::: 454 wp_2890.18.j.doc respondent No.4 or (b) to collect data by itself by conducting tests, or (c) to adopt both the methods mentioned (a) and (b) above. He submitted that no fault can be found with the expert if the expert had opted for one of the permissible courses. That apart, the decision of the 4th respondent is not based on VJTI report. The decision making process of the 4 th respondent is independent of VJTI report. The petitioners did not collect data by conducting tests. He, therefore, submitted that no fault can be found with the report of VJTI.
333. I do not find any merit in the submissions of Mr. Seervai. Insofar as the contention that the controlled blasting is to take place just 5 meters away from Atash Behram is concerned, from the material on record it is clear that the blasting will take place below 60 to 65 ft. deep from the ground level. The apprehension expressed by the petitioners is, therefore, without any merit. As far as the contention that the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:22 ::: 455 wp_2890.18.j.doc report submitted by VJTI is not an independent report is concerned, equally we do not find any merit in this submission. The entire burden of song in the petition as also during the course of hearing of this petition is that the material and reports relied by the 4th respondent do not convincingly establish that no damage will be caused to two Atash Behrams in question. The petitioners on their own did not collect any data. In other words, the petitioners have criticized the reports prepared by the experts without producing any concrete and authentic material / report.
334. It is material to note that in its report dated 15.6.2018, the Committee forwarded alternate concept plan prepared by the petitioners' Architect to the GC who have the technical competency to analyze these plans on relevant technical parameters. The GC vide their report dated 13.6.2018 have carried out a detailed analysis. They have brought out that the petitioners and their architects actually could not read the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:22 ::: 456 wp_2890.18.j.doc plans correctly. They misunderstood that the lower track of metro line was below the Atash Behrams, while it was the upper track which is beneath the premises of Atash Behrams. The GC however analyzed the concept plans given to them with due correction. The GC found that the proposed plan does not provide for essential planning requirements for passenger movement on platforms and queue length before a staircase or an escalator. It does not meet the requirements of egress capacity in accordance with the NEPA 130 for fire safety either. The plan also does not meet the requirements of barrier free accessibility of differently abled persons. The GC further brought out that the proposed plans infringe on the technical requirements of housing essential station amenities and services. The fact that even an established architect of the repute engaged by the petitioners could miss these functional, technical and operative requirements of the Kalbadevi station, which is to be designed for a metro system of design capacity of 72,000 PHPDT and ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:22 ::: 457 wp_2890.18.j.doc related station load, reinforces the need for a competent domain expert Detailed Design Consultants (DDC) to handle work of such magnitude and complexities. The Committee further noted that the petitioners' Architect do not possess any similar expertise or past experience of planning and designing of a underground metro station.
335. From the material on record, I am more than satisfied that the project undertaken by respondent No.4 is of high magnitude of public importance and complexity. The experts in the field have opined that the proposed project will not cause any damage to two Atash Behrams. It is evident from the material on record that respondent No.4 has undertaken the project by exercising due diligence and employing procedures adhering to the industrial standards.
336. Mr. Seervai submitted that the law grants protection ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:22 ::: 458 wp_2890.18.j.doc to beliefs, tenets, doctrines, customs, usages and practices and this may not necessarily be scriptural. A large majority of Zoroastrian scriptures have been destroyed and a judicial notice may be taken in that regard. We do not find any merit in this submission. Section 57 of the Indian Evidence Act, 1872 lays down that the Court has to take judicial notice of the following facts, namely, items (1) to (13) enumerated therein. It further lays down thus:
"In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and until such person produces any such book or document as it may consider necessary to enable it to do so."
337. The petitioners' case is not covered by items (1) to (13). A perusal of the above extracted portion of Section 57 shows that the Court may refuse to take judicial notice of any fact ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:23 ::: 459 wp_2890.18.j.doc unless and until such person produces any such book or document as it may consider necessary to enable it to do so. I have already held that in the present case the petitioners have utterly failed to produce any scriptural or textual evidence for substantiating their case. In view thereof, it is not possible for me to take judicial notice as claimed by the petitioners.
338. Mr. Seervai submitted that the very fact that respondent No.4 has agreed to move it 3.5 meters only after the order of the Court dated 23.5.2018 itself demonstrates that the decision making process is seriously flawed. In the first place, a perusal of the petition shows that the petitioners have not challenged the decision making process at all. I have already extracted ground (w) of the Petition. Secondly, the Committee after due deliberations in its report dated 15.6.2018 dealt with the conclusion in paragraph-9. The Committee observed thus :
"The Committee considers that, while the concept ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:23 ::: 460 wp_2890.18.j.doc plans given by the Petitioners are not feasible, the alternative plan of MMRC for the Kalbadevi Station would allow shifting of upper track tunnel by 3.5 m towards JSS road from its present location. This will reduce the extent of tunnel alignment within Wadiaji Atash Behram and the Anjuman Atash Behram by similar margins."
Thus, the concession given by respondent No.4 cannot be construed as a flaw in the decision making process.
339. Thus, I find that the project undertaken by respondent No.4 does not suffer from any error as regards decision making process as also that it will adversely affect two Atash Behrams in question. I accordingly conclude that there is no danger to the structural safety and integrity of two Atash Behrams in question in allowing the tunnel as also construction of Kalbadevi Metro Station.
(ii) Alternative proposals submitted by the petitioners:
340. Insofar as this contention is concerned, the ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:23 ::: 461 wp_2890.18.j.doc Committee in its report dated 15.6.2018 has extensively dealt with this aspect. After analyzing the entire material on record, the Committee concluded in paragraph-9 that the concept plan given by the petitioners are not feasible.
341. That apart in the affidavit dated 23.7.2018 respondent No.4 has enclosed the response to the three options given by the petitioners in respect of Kalbadevi metro station and the report of GC concluded that the station design proposals in all three options made by the Architects of the petitioners are not found feasible.
342. It is required to be noted that the project undertaken by respondent No.4 is of high magnitude of public importance and complexity. The experts in the field have opined that the proposed project will not cause any damage to two Atash ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:23 ::: 462 wp_2890.18.j.doc Behrams. It is evident from the material on record that respondent No.4 has undertaken the project by exercising due diligence and employing procedures adhering to the industrial standards. The Court does not have expertise in this regard. This Court while exercising powers under Article 226 of the Constitution of India cannot lightly interfere with the opinions expressed by the experts in the field. This is more so when the petitioners have not produced any concrete material so as to contradict the reports placed on record by the 4th respondent. PER COURT
343. In view of the aforesaid discussion, we pass following order:
(1) The Respondent Nos. 3 and 4 are permitted to continue boring of tunnels under the Atash Behrams i.e. H.B. Wadiaji Atash Behram and Anjuman Atash Behram on the following conditions:
(a) The Authorities, Technicians / Officers responsible for carrying out subject tunneling work under the project, shall ensure that no ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:23 ::: 463 wp_2890.18.j.doc damage is caused to the two Atash Behrams i.e. H.B. Wadiaji Atash Behram and Anjuman Atash Behram during the execution of tunneling work.
(b) While tunneling work is in operation, there shall be strict monitoring of vibration levels 24 x 7 using necessary devices and equipments;
(c) During boring of tunnel passing beneath the two Atash Behrams, specially constituted Team of Experts shall be present on the spot 24 x 7;
(d) If necessary the Tunnel Boring Machines
(TBMs) shall be slowed down while the
tunneling work is in operation beneath the premises of two Atash Behrams;
(e) Controlled blasting method shall be adopted for boring tunnels underneath the two Atash Behrams;
(f) Necessary equipments shall be installed permanently in different places in or around the two Atash Behram structures to monitor levels of vibrations, by the Respondent Nos. 3 and 4;
(g) Respondent Nos. 3 and 4 are directed to continuously monitor water levels of the wells ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:23 ::: 464 wp_2890.18.j.doc situated in the premises of two Atash Behrams. They shall take necessary precautions in that regard by installing requisite number of ground water charging wells;
(2) Ad-interim relief granted earlier, stands vacated forthwith.
(3) Petition is disposed of in the above terms; (4) Rule is accordingly discharged with no order as to costs.
R.G.KETKAR, J. CHIEF JUSTICE
344. After pronouncement of the judgment, the learned Senior Counsel Mr. Seervai made an oral request and prayed for continuation of ad-interim for a further period of two weeks as the same was in operation since May, 2018. The learned Counsel further submits that the petitioners may be resorting to appropriate remedies in the Apex Court. It is submitted that no prejudice would be caused if the ad-interim relief is extended for a period of two weeks.
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345. We have heard the learned Senior Counsel Mr. Divetre. He has supported the submission of learned Senior Counsel Mr. Seervai.
346. Learned Senior Counsel Mr. Aney for Respondent No.4 on instructions opposed the prayer for continuing ad- interim relief. It is submitted that loss of around more than Rs. 4 crores per day is suffered due to delay in execution of the project. It is a public project of vital importance for the City of Mumbai. Various agencies are involved who are participating in execution of the project. The State and the Central Government and other financial agencies are contributing towards the cost of the project. In view of the final outcome of the matter, now there is no necessity to continue ad-interim relief. If aggrieved, the Petitioners can very well resort to appropriate remedies. ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:24 :::
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347. We have considered the submissions advanced by the learned Counsel for the parties. We are conscious of the fact that it is an infrastructure project being executed in the larger interest of public. The project involves huge costs. Delay in project may further escalate cost.
348. We may make a useful reference to the provision of Section 41(ha) of the Specific Relief Act, 1963, which reads as under:
"41. Injunction when refused.--- An injunction cannot be granted --
(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project."
349. In our considered view, we do not find it appropriate to withhold the infrastructure project of this magnitude any further. In this view of the matter, we are not inclined to accede ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:39:24 ::: 467 wp_2890.18.j.doc to the request made by learned Senior Counsel Mr. Seervai appearing for the petitioners. Oral request for stay is therefore, rejected.
R.G.KETKAR, J. CHIEF JUSTICE
kandarkar /
L.S. Panjwani, P.S .
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