The Bombay High Court on Friday permitted the Mumbai Metro Rail Corporation Limited (MMRCL) to continue the tunnel boring work for the underground Colaba-Bandra-SEEPZ Metro 3 corridor, including the stretch under H B Wadiaji Atash Behram and Anjuman Atash Behram along the route. Work at these places had been on hold for around six months after a petition was filed by five members of the Zoroastrian community.
The petition contended that it is virtually impossible to consecrate a fire temple of the highest degree or Atash Behram in modern times, and so their rarity must be preserved. The petition says that there are only eight Atash Behrams in India and the last Atash Behram Zarthosti Anjuman Atash Behram was consecrated over 122 years ago.
A bench of Chief Justice Naresh H Patil and Justice Rajesh Ketkar, recording separate reasons, allowed the MMRCL to go ahead with the construction on the condition that no damage is caused to the two Atash Behrams.
The bench said that “while tunneling work is in operation, there shall be strict monitoring of vibration levels 24 x 7 using necessary devices and equipment; during boring of tunnel passing beneath the two Atash Behrams, specially constituted Team of Experts shall be present on the spot 24 x 7.”
Chief Justice Patil said, “The citizens of Mumbai do deserve efficient, suitable and environment friendly mass 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.”
He also observed that across the world, where heritage sites are located within cities, development is planned in a manner so as to maintain balance between infrastructural development while retaining and maintaining heritage.
The Chief Justice also noted that the tunnel on the other side of the fire temples is already constructed and a realignment would now not be possible.
Justice Ketkar said the beliefs cited by the petitioners of the Atash Behrams requiring to be in constant contact with the earth are not established as 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 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,” he noted.
The bench has relied on several judgements including the landmark judgment passed by the Supreme court in the Sabarimala case. Justice Ketkar held, “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.”
The court noted, “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 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.”
It was further added, “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.”