Bombay High Court Permits Mumbai Metro 3 tunnelling under two fire temples


December 1, 2018

Post by




Senior Journalist and friend of Parsi Khabar, Nauzer Bharucha writes


“The Bombay High Court today allowed a metro rail tunnel to run under one of the most venerated Fire Temples of the Parsis in India—the 188-year-old Wadia Atash Behram in south Mumbai. The entire Parsi-Irani community is in a state of shock at this impending desecration of one of their holiest Fires consecrated way back in 1830. This is probably the first time in several centuries of the Parsis in India that the community feels that its religious sentiments have been hurt. Badly. And this has happened under the rule of the BJP government. A slew of appeals and petitions to the prime minister and chief minister fell on deaf ears. The Parsis did not want the metro rail project scrapped. All that they asked nay begged the government was to shift the tunnel just 4 metres outside the premises of the Atash Behram. This was feasible as many experts including a leading Italian tunnel specialist had shown. But the government and the metro authorities did not care. A distressed friend wrote to me: “The government Has shown us our true place..we are second grade citizens in this first rate country..”

Bombay HC allows Metro tunnelling under two fire temples

Swati Deshpande | TNN


The Bombay high court allowed tunnelling under consecrated premises of two heritage Atash Behrams—highest grade fire temples—for Mumbai Metro 3 with strict monitoring of work to ensure that no damage is caused to the structures. Continuous monitoring and necessary precautions will need to be taken with scientific experts’ guidance said the HC on Friday. The court dismissed a petition filed against the tunnelling work.

The HC also vacated the stay that had been granted in May and which had continued since. Pleas by senior counsel Navroz Seervai for a two week stay to enable an appeal before the Supreme Court was opposed by MMRCL counsel S G Aney who said Rs 4 crore is the loss faced daily for halted work as the TBM machine is on hold.

The HC vacated the existing stay and declined to stay its order, thus allowing MMRCL to even start with the tunnelling work as soon as the judgment becomes available.

The HC bench of Chief Justice Naresh Patil and Justice R G Karnik gave separate reasons in the concurrent verdict which has come as a blow to the Parsis who had filed the petition and the large number of people from the community who were supporting the petition.

The HC appeared to accept an expert panel report submitted by VJTI college which had recommended that tunnelling be permitted with certain safeguards to ensure no damage is caused to the temples or well water.

The HC too said on Friday that there should be monitoring of well water levels during the tunnelling and underground metro construction work.

Outside the Court room, leading petitioner Jamshed Sukhadwala expressed his sadness and disappointment at the ruling and lack of stay. Another petitioner Ratan Patel also said that at least a week’s stay could have been given. Both of them and their lawyer Zerick Dastur said that they would consider going in appeal once they peruse the judgment. The ruling runs into hundreds of pages and is not yet made available.

The petition was by structural engineer Sukhadwala and other prominent Parsis including a priest and a lawyer seeking re-alignment of the Metro-3 to avoid going under the two heritage Zoroastrian Atash Behrams, in the island city, one of which is 188 years old, the other 122. The station near the fire temples would be the Kalbadevi metro station in the 45 km Colaba- Bandra-Seepz underground metro 3 route.

The lengthy hearing in the matter had concluded well before Diwali vacations.

“Rights of public are larger than rights of a community,” senior counsel Aney appearing for Mumbai Metro Rail Corporation Ltd (MMRCL) had argued. He had also said that the fundamental right of Parsis to practice religion was not being breached by the underground Metro-3 line.

The HC appears to have accepted that.

Aney is the former Maharashtra advocate general. The MMRCL said notification regarding the alignment had been issued.

Fredun Devitre, counsel for Atash Behram trustees, had argued that “The court will have to balance the scales…’’ adding, “A perfectly good alignment can be technically tweaked, if feasible.’’

Aney had said that rights of public who commute to work in Mumbai also has to be taken into account. “In this city if you can’t transport from one end of the city to another, you cannot live. Is it not a part of right to life?’’ he asked.

Aney said, “no fundamental right of Parsis is breached. It is not a case of Article 25—right to freely practice, profess and propagate religion—being breached.’’ The Parsis had through counsel Navroz Seervai argued at length that their right under Article 25 would be breached if Metro line is allowed to go under the Atash Behrams which house the highest grade fires, the only two of eight such in India.

Aney however had cited a series of Supreme Court judgments to argue that “the proper approach would require balancing the rights of petitioners against rights of rest of the citizens.’’ He said several Constitutional rights have to be considered, not just one.

He said, “Citizens have access to benefits …as also to live a life of dignity, work in comfortable environment and partake in wealth of the city. The state has a constitutional obligation to ensure the citizen is not deprived of these benefits and conveniences.”

Aney called for applying the ‘doctrine of proportionality’’ to aid the “exercise of balancing seemingly conflicting rights.”

Mumbai: High Court permits Metro III tunnel work under Fire Temples to continue

Nov 30, 2018, 14:29 IST | Arita Sarkar| Mid-Day

Chief Justice Naresh Patil, permitted the work to continue at the Anjuman and Wadiaji Atash Behrams, adding that certain conditions must be followed

The much-anticipated judgment regarding the Metro tunnel work under Fire Temples did not pan out well for the Parsi community on Friday as The Bombay High Court gave the nod for the tunnel boring work as part of Metro III construction connecting Colaba-Bandra-SEEPZ.

Chief Justice Naresh Patil, permitted the work to continue at the Anjuman and Wadiaji Atash Behrams, adding that certain conditions must be followed. Among the conditions, Patil said that the team of experts constituted by the High Court would be present at the site, the equipment to monitor the structural stability will be installed permanently and continuous monitoring of the water level in the wells will be done.

After the order was pronounced, senior counsel Navroz Seervai representing Parsi community, asked for an extension of the stay order for two weeks until they were able to approach the Supreme Court. However, Patil turned down their request. The Parsi community are now planning to approach the Supreme Court for a stay next week.

The final arguments by the Mumbai Metro Rail Corporation (MMRCL) and the Parsi community ended on October 8 in the Bombay High Court. The line is expected to run below two of the community’s highest seats of worship in the city, the Wadiaji Atashbehram and Anjuman Atashbehram, both at Princess Street.

The 33.5-km Metro III line would be underground. The line will connect Cuffe Parade business district in the extreme south of the city to SEEPZ in North-central suburbs of Mumbai.