SC Refuses To Stay Bombay HC Judgment Permitting Metro Tunneling Under Fire Temples [Read Order]

‘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.’  (Bombay HC)

Last week, the Supreme Court refused to stay the Bombay High Court judgment permitting metro tunneling under Fire temples in Maharashtra.

The apex court bench comprising of Justice Uday Umesh Lalit and Justice R Subhash Reddy partly heard Senior Advocate Mukul Rohatgi, who appeared for the petitioners, and ordered the matter to be listed on 4^th January 2019.

Five persons practicing the Zoroastrian faith had approached the Bombay High Court against the construction of a metro tunnel underneath two Fire temples. One of their contentions against the tunnel was that if a tunnel for the metro is allowed to be bored under the premises of 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.

The high court bench comprising Chief Justice Naresh H Patil and Justice RG Ketkar delivered a 467-paged judgment permitting metro tunneling. The bench observed that there is no danger to the structural safety and integrity of two Atash Behrams in allowing the tunnel as also the construction of Kalbadevi Metro Station.

Justice RG Ketkar, in his separate judgment, extensively referred to the Constitution bench judgment in Sabarimala case and said: “If a tunnel is dug or MML-3 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.”

Justice Ketkar also observed that any right of the petitioners to practice of their religion cannot be to the negation of the fundamental rights of the citizens and the fundamental rights claimed by them under Article 25 of the Constitution of India is subservient to other fundamental rights in Part-III of the Constitution of India.

The bench had then disposed of the plea permitting boring of tunnels under the Atash Behrams i.e., H.B. Wadiaji Atash Behram and Anjuman Atash Behram on the following conditions:

• The Authorities, Technicians/Officers responsible for carrying out subject tunneling work under the project, shall ensure that no 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.


• While tunneling work is in operation, there shall be strict monitoring of vibration levels 24×7 using necessary devices and equipment;


• During boring of a tunnel passing beneath the two Atash Behrams, specially constituted Team of Experts shall be present on the spot 24×7;


• 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;


• Controlled blasting method shall be adopted for boring tunnels underneath the two Atash Behrams; and


• Necessary equipment shall be installed permanently in different places in or around the two Atash Behram structures to monitor levels of vibrations and continuously monitor water levels of the wells situated in the premises of two Atash Behrams. They shall take necessary precautions in that regard by installing the requisite number of ground water charging wells.