R739

TEAM: R739
7TH KIIT UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2019
BEFORE THE HON’BLE

SUPREME COURT OF INDUSLAND
SPECIAL LEAVE PETITION
SLP (CIVIL) NO.__OF 2019
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUSLAND
R.MANEKSHAW……............................................................APPELLANT
V.
UNION OF INDUSLAND…....................................................RESPONDENT
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDUSLAND
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT
1
MEMORIAL ON BEHALF OF RESPONDENT
TABLE OF CONTENTS
LIST OF ABBREVIATIONS......................................................................4
INDEX OF AUTHORITIES........................................................................5
STATEMENT OF JURISDICTION..............................................................7
STATEMENT OF FACTS.............................................................................8
STATEMENT OF ISSUES............................................................................11
SUMMARY OF ARGUMENTS........................................................................12
ARGUMENTS ADVANCED........................................................................15
1.Whether the beliefs of the Petitioners as contended in the Writ Petition and
pertaining to the Ankurans, form an “essential” and “integral” part of the
Saras religion................................................................................................15
[A] THE BELIEFS IN THE WRIT PETITION ARE NOT ESSENTIAL AND INTEGRAL
PART OF SARAS RELIGION............................................................................................15
1. It is the discretionary power of the court to determine the ambit of the practices forming
the essence of religion..........................................................................................................15
2.There should be a fundamental change to the religion.....................................................16
3. scriptures are important to substantiate the beliefs highlighted in the Petition...............17
2.Whether the construction of a tunnel under the Ankuran will desecrate the
spiritual sanctity of the Ankuran and violate the Petitioners’ fundamental
rights under Article 25 of the Constitution?....................................................17.
A)NO DESECRATION OF SPIRITUAL SCANTITY.........................................................18
B) NO VIOLATION OF FUNDAMENTAL RIGHT UNDER ARTICLE 25....................19
1.The practices should form essence of the religion........................................................................19
2. The right to freedom is subject to other parts of part III............................................................20
2
3. Article 25 permits to make legislations aiming at social welfare........................................21
3.In the event it is established that there is a fundamental right under Article
25 of the Constitution in the present case, whether there will be any conflict
with any fundamental rights under Article 21 of the Constitution or whether
the two fundamental rights can be balanced?.................................................22
[A] THE TWO FUNDAMENTAL RIGHTS CAN BE BALANCED................................22
(1) Violation Of Article 21.....................................................................................................23

(2)No Possibility Of Alignment...............................................................................................25
(3) No Need Of Balancing Of Fundamental Rights.................................................................27
4.Whether the Petitioners had established a fundamental right under Article

29 of the Constitution and whether there was any violation thereof?.........27
[A] NO DAMAGE TO THE STRUCTRE AND NO VIOLATION OF ART.29.......27
1.No Threat To Structural Stability..................................................................................28
(1.1) Process followed for construction to ensure there is no structural damage...................28
(1.2) The controlled blasting method will not directly impact the structural stability of the
Ankuran...........................................................................................................................29
(1.3)The Various Studies/Reports/Analysis Submitted In The Favour Of Respondent...........31
[B] NECCESSITY OF METRO RAIL IN LIGHTS OF DPSP.........................................31
PRAYER...............................................................................................33
3
LIST OF ABBREVIATIONS
& And
AIR All India Reporter
Anr. Another
Govt. Government
International Covenant on Civil and Political

ICCPR Rights
Ltd. Limited
Ors. Others
SLP Special Leave Petition
Vol. Volume
v. Versus
SC Supreme Court
SCC Supreme Court Cases
P. Page
Bom Bombay
Art. Article
Commissioner
Comm.
4
INDEX OF AUTHORITIES
CASES:
1. GOVINDLALJI V. STATE OF RAJASTHAN AIR 1963 SC 1638
2. INDIAN YOUNG LAWYERS ASSOCIATION V. STATE OF KERALA, AIR 2015 SC

2026.
3. N.ADITHYAN V. TRAVANCORE DEWASWOM BOARD, AIR 2002 SC 3538.
4. DURGA DAS.BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,

VOLUME3.
5. 3JAVED V. STATE OF HARYANA AIR 2003 SC 3057.
6.SRI JAGGANATHA TEMPLE V. CHINTAMANI KHUNTIA, AIR 1997 SC 3839.
7.RAJASTHAN V. SAJJANLAL, A.I.R. 1975 S.C. 706.
8.CF.ABINGTON SCHOOL DT. V. SCHEMPP,374 US 203(1963).
9.SRI JAGGANATHA TEMPLE V. CHINTAMANI KHUNTIA, AIR 1997 SC 3839
10.THE COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V.

LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT,1954 AIR 282.
11.MOHAMMAD ALI KHAN VS. SPECIAL LAND ACQUISITION OFFICER,1978 AIR

280
12. FRANCIS CORALIE V. UNION TERRITORY OF DELHI, AIR 1994 SC 1844
13. SHANTISAR BUILDERS V. NARAYANAN KHIMALAL TOTAMEN, AIR 1990 SC

630.
14. JAMSHED NOSHIR SUKHADWALLA AND 4 ... VS UNION OF INDIA AND 11

ORS , WRIT PETITION NO. 2890 OF 2018
15. MAZDOOR KISAN SHAKTI SANGHATAN VS UNION OF INDIA , [WRIT

PETITION (CIVIL) NO. 1153 OF 2017]
16. CHARAN LAL SAHU V. UNION OF INDIA, AIR 1990 SC 1480.
17. SUBHASH KUMAR V. BIHAR AIR 1991 SC 420 : (1991) 1 SCC
5
18.SUBHASH KUMAR V. BIHAR AIR 1991 SC 420 : (1991) 1 SCC
19.M.C MEHATA V UNION OF INDIA ,(1996) 4 SCC 750,
20.NARMADA BACHAO ANDOLAN V UNION OF INDIA, (2017)3 SC 268.
21.ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND V UNION OF

INDIA,(1997)3 SCC 549.
22.STATE OF PUNJAB AND ORS. V. MOHINDER SINGH CHAWALA,CIVIL APPEAL

NO. 16979 OF 1996 (ARISING OUT OF SLP (C) NO. 1247 OF 1996.
23.47 NARAIN DAS JAIN V. AGRA NAGAR MAHAPALIKA, (1991) 4 SCC 212.
24. JAGDISH PRASAD V. M. C .D, AIR 1993 SC 1254.
25. K.K KONCHUNI V STATE OF MADRAS AND KERALA, AIR 1960 SC 1080.
26. LALA RAM V UNION OF INDIA, (2015) 5 SCC 813.
27. DANTULURI RAM V. STATE OF A.P, (1972) 1 SCC 421.
28. UNNIKRISHNAN V. STATE OF ANDHRA PRADESH 1993 AIR 2178
29.DELHI TRANSPORT CORPORATION V. DTC MAZDOOR CONGRESS1992

SC1072 (4)
30.AKHILA BHARATIYA SOSHIT KARAMCHARI SANGH (RAILWAY) V UNIOB OF

INDIA,(1981) 1 SCC246:AIR 1981 SC 298
31.IN RE: THE KERALA EDUCATION BILL, ... VS UNKNOWN, 1959 1 SCR 995
32.HANIF QUARESHI MOHD. V. STATE OF BIHAR, 1958 AIR 731, 1959 SCR 629
33.SAJJAN SINGH V. STATE OF RAJASTHAN, 1965 AIR 845, 1965 SCR (1) 933
34.BIJOYA COTTON MILLS V. STATE OF WEST BENGAL, 1955 AIR 33, 1955 SCR (1)
752
35. KESAVANANDA BHARTI V. STATE OF KERALA, WRIT PETITION: (CIVIL) 135

OF (1970)
6
OTHER AUTHORITIES.
1.UPDATED ENVIRONMENTAL IMPACT ASSESSMENT REPORT BY MMRC

,NOVEMBER 2018.
2.TUNNEL ENGINEERING SURVEY AT DELHI METRO PHASE-III CC04 PROJECT(
3.THE ECONOMIC TIMES, 3,014 COMMUTERS KILLED ON MUMBAI RAILWAY

TRACKS IN 2017: RTI , JAN 26 2018.
4.APRAJITHA VARMA,TATA INSTITUTE OF SOCIAL SCIENCES HYDERABAD,

END USER IMPACT OF METRO RAIL IN HYDERABAD
5.CHITTRANJAN TEMBHEKAR, TIMES OF INDIA, 800 SILENT BLASTS PITCH FOR

UNDERGROUND METRO STATION, SEP 27 2018.
6.KAVITAKAIT, DR.BR AMBEDKAR FATHER OF INDIAN CONSTITUTION,
7.INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS
8.UNIVERSAL DECLARATION OF HUMAN RIGHTS
9.INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
BOOKS REFERED:
1.V.N.SHUKLA, CONSTITUTION OF INDIA.13th EDITION.
2.M.P.JAIN, CONSTITUTION OF INDIA, 7TH EDITION.
3. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Y.V.

CHANDRACHUD & S.S. SUBBRAMANI & V.R. MANOHAR & B.P. BANERJEE EDS.,
VOL. 2, 8TH ED. 2012
7
STATEMENT OF JURISDICTION
The Hon’ble Supreme court of Indusland has the Inherent jurisdiction to try, entertain and
dispose of the present case by virtue of Article 136 of the constitution of Indusland.
“Article 136 - Special leave to appeal by the Supreme Court.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.”
8
STATEMENT OF FACTS
BACKGROUND
Aryavartha is a state of Indusland and the laws applicable in this state are pari-materia to the
laws of Republic of India. Meghanad Metro Rail Corporation Limited( hereafter MMRCL) is
a Joint venture between the Govt. of Indusland and Govt. of Aryavartha for the construction
of Meghnad Metro Rail Project in the state ofAryavartha, where the project will be
implemented underground.
Saras religion is one of the religions in Indusland. Ankuran(Fire temple) a 188 year old
heritage structure with special religious and spiritual significance for saras religion which is
in South Meghnad.The Meghnad MetroRail line has been proposed to run directly under the
Ankuran.
Certain members of the Saras community got together and made various representations
before the Government as the proposed project will violate their fundamental rights, which
did not bear any result.
WRIT PETITION IN HIGH COURT OF ARYAVARTHA
A Writ Petition was filed before the Aaryavarta High Court by certain members of saras
community when the proposed construction was around 100 mtrs away from the said
Ankuran, As the passage of metro rail under the Ankuran would violate the fundamental
rights of the Petitioners under Article 25 and Article 29 of the Constitution of Indusland.
The Hon'ble High Court granted an ad- interim stay on the proposed construction, as it
involves serious aspects of Constitutional Law. The Petition was thereafter heard by the
Hon'ble Aaryavarta High Court over a period of 1 month, where arguments on establishing
the fundamental right under Article 25 and Article 29 of the Constitution were put forth.
ARGUMENTS BY PETITIONER
1) The fire is the central focus of the Saras religion. No Saras rituals can be complete without
the presence of fire. Ankurans represent the divinity presiding over the fire and consecrated
9
physical forms of ever-burning fires were installed in the respective Ankurans. There are only
8 such Ankurans in Indusland and its rarity has to be preserved.
2)The Petitioners stated that the process of consecration of an Ankuran is an elaborate

procedure involving highly-trained priests performing various complex rituals.The belief of
laying down spiritual circuits (“Ankurs”) while consecrating an Ankuran is fundamental to
the Saras religion. The Ankurs extend to and cover the entire premises of the Ankuran and
also extend below the ground to protect the Ankuran. If a tunnel is allowed to pass under the
Ankuran premises it will amount to a breach of the Ankurs.
3)The belief is that the ceremonies cannot be performed on an elevated place. They are to be
necessarily performed on the ground floor, with direct connection to Mother Earth from
which it draws sustenance and there should be no movement beneath it. If a tunnel were to be
bored under the Ankuran premises, then Ankuran premises become an elevated level and the
connection with the ground would be considered breached. It would also result in the
complete desecration of the Ankurans in turn leading to a spiritual disaster for the entire
Saras community.
4)It was argued that the above beliefs form an essential and integral part of the Saras religion.
The Petitioners were supported by all the five High Priests of the Saras community who filed
affidavits in support of the Petition stating that the issues raised in the Petition were part of
the fundamental belief system of Sarasism.
5)The Petitioners requested that the MMRCL should be directed to shift the proposed
alignment of the metro tunnel by merely 5 meters, which would result in the tunnel presently
proposed directly under the Ankuran ceasing to run under the said Ankuran and,
consequently, the right under the Article 25 of the Constitution would be preserved
6)A large majority of the Saras scriptures had been destroyed in the course of history and,
therefore, a test of scriptures should not be applied in the case of Sarasism. In any event, there
was no conflict between the rights under Article 21 and Article 25 of the Constitution. Even
if there is conflict between two fundamental rights it should be balanced and that total
extinguishing of a right under Article 25 of the Constitution would not amount to balancing
of fundamental rights.
ARGUMENTS BY RESPONDENTS
10
1) MMRCL argued that the Petitioners had failed to establish any right under Article 25 of
the Constitution and that there was no scriptural material produced which would show that
boring a tunnel 60 feet below the Ankuran would violate the spiritual sanctity of the Ankuran.
MMRCL argued that not all religious rights can claim constitutional protection, which
protection is extended only to essential religious practices.The Petitioners had failed to
establish that the issues raised in the Petition are essential or integral to the Saras religion.
They contended that merely filing affidavits of High Priests is not sufficeient.
2) Additionally, the rights under Article 25 of the Constitution are subject to other
fundamental rights under Chapter III of the Constitution and that the citizens of Meghnad
have a right under Article 21 of the Constitution to use a metro line
3) It was further argued that shifting the tunnel from its present alignment would entail
further cost and burden the state exchequer. Hence it was submitted that the reliefs prayed for
ought not to be granted.
HIGH COURT’S JUDGEMENT
The Hon'ble High Court upheld the contentions of MMRCL and rejected the contentions of
the Petitioners and permitted MMRCL to continue with the construction of the tunnel under
the present alignment without any change.
SPECIAL LEAVE PETITION
The Petitioners are not satisfied with the High court’s judgment and approached the Hon'ble
Supreme Court of Indusland by way of a Special Leave Petition. The Supreme Court has
granted an injunction on the proposed construction and proposed to hear the matter finally on
12th September 2019.
11
STATEMENT OF ISSUES
ISSUE 1
Whether the beliefs of the Petitioners as contended in the Writ Petition and
Saras religion?
ISSUE 2
Whether the construction of a tunnel under the Ankuran will desecrate the
rights under Article 25 of the Constitution?
ISSUE3
In the event it is established that there is a fundamental right under Article 25

of the Constitution in the present case, whether there will be any conflict with
any fundamental rights under Article 21 of the Constitution or whether the
two fundamental rights can be balanced?
ISSUE4
Whether the Petitioners had established a fundamental right under Article 29

of the Constitution and whether there was any violation thereof?
12
SUMMARY OF ARGUMENTS
1.Whether the beliefs of the Petitioners as contended in the Writ Petition and
Saras religion?
Religious practices should not sprung from merely superstitious beliefs. The beliefs and
practices should be fundamental to the religion. It is submitted that there is no fundamental
change to the religion. Essential and Integral part of a religion are to be determined by the
court. Scriptures of the religion are important to substantiate the beliefs of appellants. Thus
the beliefs of the petitioners as contended in the Writ petition are not an ‘essential’ and
‘integral’ part of the saras religion.
2.Whether the construction of a tunnel under the Ankuran will desecrate the
rights under Article 25 of the Constitution?
The construction of a tunnel under Ankuran will not desecrate spiritual sanctity as it is a mere
imaginary grievance. 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. As Article 25 is subject
to other parts of part III of constitution there should be no violation of Article 21. Practices
other than essential and integral can be regulated by legislation in the interest of public order,
morality, health, social welfare, and reforms. Article 25 protects only those practices which
form essence of the religion.
3.In the event it is established that there is a fundamental right under Article
25 of the Constitution in the present case, whether there will be any conflict
with any fundamental rights under Article 21 of the Constitution or whether
the two fundamental rights can be balanced?
As the fundamental right under article 25 is not established, Delay in metro project leads to
violation of Article 21 of the constitution and balancing of rights is not necessary as there is
no violation of article 25 and further shifting of proposed alignment is not possible because of
budget constraints and technicality problems associated with it
13
4.Whether the Petitioners had established a fundamental right under Article
29 of the Constitution and whether there was any violation thereof?
The practices of Saras community are not essential and integral part of the religion and their
fear of threat to structural stability of the Ankuran is based on speculations, hence there is no
violation of Article 29 of the saras community as there is no threat to their culture in any way.
14
ARGUMENTS ADVANCED
I.WHETHER THE BELIEFS OF THE PETITIONERS AS CONTENDED IN THE

WRIT PETITION AND PERTAINING TO THE ANKURAN, FORM AN
“ESSENTIAL” AND “INTEGRAL” PART OF THE SARAS RELIGION?
It is humbly submitted to this hon’ble court that ankuran is the highest grade fire temple the
beliefs in the writ petition are not an essential and integral part of the saras religion[A].
[A] THE BELIEFS IN THE WRIT PETITION ARE NOT ESSENTIAL AND INTEGRAL
PART OF SARAS RELIGION.
Certain practices even though regarded as religious, may have sprung from merely
superstitious beliefs and in that sense be only extraneous and unessential accretion to religion
itself. Such practices can be abrogated and are not protected.
It is the discretionary power of the court to determine the ambit of the practices forming the
essence of religion [1] keeping in view whether is a fundamental change to the religion [2].
scriptures are important to substantiate the beliefs highlighted in the Petition[3]
1. It is the discretionary power of the court to determine the ambit of the practices forming
the essence of religion.
It is subject to the decision of the court to determine whether a particular practice or rite
constitutes the essence of the religion or is mere secular activity.1 In cases where evidence is
produced in respect of rival contentions as to the 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 inquire
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
issue will always depend upon the evidence adduced before it as to the conscience of the
community and the tenets of its religion.2
1
Govindlalji v. State of Rajasthan AIR 1963 SC 1638.
2
Ibid.
15
The Council submits that petitioners have failed to adduce evidence in the form of any
religious texts or scriptures which demonstrate that such fire is connected to the center of the
Earth; and that such connection shall be breached if any construction work is carried
underneath the Ankuran.
In Sabarimala's 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.3
2. A fundamental change to the religion
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.
The Respondents thus contend that merely filing affidavits of High Priests would not show
that there is a fundamental change to the religion.4
Fire is the central focus of saras religion but not Ankurs. Ankur's are protective rings and they
do not extend indefinitely below the Earth. The petitioners have not adduced cogent evidence
in the form of any scriptural or textual evidence to substantiate their contentions that Ankurs
extend below the Earth. There will be no breach of Ankurs by constructing a metro rail under
60-65 ft. from ground level.
In spite of constructing an underground metro they can worship in the same place, the karshas
would still protect the sacred fire which is fundamental to saras religion, thus the respondents
contend that there will be no fundamental change to the religion.
The petitioners 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. It is a mere belief of the community that there
is a constant requirement for the sacred fire of Ankuran to be connected with mother Eartand
that the fire is surrounded by spiritual circuits which act as protective barriers.
3
Indian young lawyers Association v. State of kerala, AIR 2015 SC 2026.
4
Ibid.
16
3. scriptures are important to substantiate the beliefs highlighted in the Petition.
The religious scriptures are important to substantiate that the practices and beliefs are
essential and integral to religion. The Supreme Court surveyed the Jain religious tenants with
regard to the management of Jain religion endowments.5
The caution of an essential and integral part is necessary otherwise even secular or
superstitious will be clothed with the religious sanction and may claim to be treated as
religious practices. As most of the saras scriptures are destroyed in the course of history, all
the beliefs of the saras community cannot be treated as essential and integral.
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.6
The petitioners have failed to produce any scriptural or textual evidence for substantiating
their case. In view thereof, it is not possible to take judicial notice as claimed by the
petitioners.
II.WHETHER THE CONSTRUCTION OF A TUNNEL UNDER THE ANKURAN

WILL DESECRATE THE SPIRITUAL SANCTITY OF THE ANKURAN AND
VIOLATE THE PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE 25
OF THE CONSTITUTION?
The respondents contest that the construction of a tunnel under the Ankuran will not desecrate the
spiritual sanctity of the Ankuran(A). There is no violation of petitioners' fundamental rights under
Article 25 of the constitution(B)
5
Rajasthan v. Sajjanlal, A.I.R. 1975 S.C. 706.
6
Section 57 of India Evidence Act,1872
17
A) NO DESECRATION OF SPIRITUAL SCANTITY
Except for evidence in the form of their own statements (Affidavits) that as per religious injunctions
and customs, any construction underneath the Ankuran 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 Ankuran, the High Priests have not produced any evidence (scriptures,
religious texts etc.) in support of these assertions.
The concerned Affidavit deals with the spiritual significance of an Ankur but does not state anywhere
that this Ankur extends below the surface of the Earth. The Respondent is not disputing that the
Ankur has spiritual significance but contends that the Petitioners have not shown any proof in sacred
texts that this Ankur extends beneath the earth's surface to the center of the earth. This Respondent
also denies that any such connection would be breached if the Metro Tunnel is constructed.
It is humbly submitted that the 'Karshas' referred to the "The Religious Ceremonies and Customs of
the Parsees by Dr. Jivanji Jamshedji Modi". The author defines 'Karshas' as a "trench or a furrow". It
is further stated by the author, "At times, sacred or consecrated 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 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 traveling, 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 around 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 'Ankurs' are in fact
trenches drawn on the ground surrounding a consecrated object to indicate that the article placed
within the 'Karsha' is free from contact from other undesirable persons/objects. 7
Constructing a metro rail underneath the Ankuran will not desecrate its spiritual sanctity as there will
be no contact of undesirable things. It is contended that the imaginary grievances raised by the
petitioners as regards the construction of Metro rail 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 daily. It is contended that the project with such a high magnitude of
public importance cannot be frustrated due to imagined violations of the interest of the petitioners.
7
Jivanji Jamshedji Modi, "The Religious Ceremonies and Customs of the Parsees" 1st Edition 1922, 2nd
Edition 1937.
18
B) NO VIOLATION OF FUNDAMENTAL RIGHT UNDER ARTICLE 25.
The respondents humbly submit that the protection under Article 25 will be available only to those
practices which form the essence of the religion [1]. The right to freedom of religion is subject to
other parts of part III [2]. Article 25 permits to make legislations aiming at social welfare [3].
1.The practices should form essence of the religion
The freedom of practice would extend only to those rites and observances which are of the essence of
the religion and would not cover secular activities which go by the name of religion and are no part of
true religion. It has been stated by the Supreme Court that ‘' the protection under article .25 extends a
guarantee for rituals, observances, ceremonies, and modes of worship which are integral parts of the
religion.''8
Practice to be treated as a part of religion, it is necessary that it be regarded by the said religion as its
essential and integral part. This caution is necessary because even purely secular, not essential to
religion will be clothed with the religious sanction and may claim to be treated as a religious practice
within the meaning of Article 25. They can be abrogated by legislation subject to other fundamental
rights.9
Therefore, the protection under Article 25 is with respect to religious practices that form the essential
and integral part of the religion. All other practices can be regulated by legislation in the interest of
public order, morality, health, social welfare, and reforms.10
Hence, the beliefs and practices are not protected under Art.25, as they do not form an essential and
integral part of the religion.
8
N.adithyan v. Travancore Dewaswom Board, AIR 2002 SC 3538.
9
DURGA DAS.BASU, Commentary on the constitution of India, volume3.
10
3Javed v. State of Haryana AIR 2003 SC 3057.
19
[2] The right to freedom is subject to other parts of part III
A person can exercise his religious freedom so long as it does not come into conflict with the exercise
of fundamental rights of others. The supreme court has observed that ‘' 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’’.11
The major contentions are a violation of Article 21, and Article 25 is subject to the freedom to
manage religious affairs guaranteed under Article 26(b) of the Constitution.
The freedom of conscience and freedom to speak, profess and propagate religion guaranteed
under Article 25 of the Constitution is subject not only to public order, morality and health,
but also subject to the other provisions of Chapter III. It necessarily &Implies that the right to
freedom of religion guaranteed under Article 25 is subject to the freedom to manage religious
affairs guaranteed under Article 26(b) of the Constitution.
Article 26(b) gives complete freedom to the religious denomination to manage its affairs in
matters of religion subject to public order, morality, and health. Matters of religion must be
essential and integral.12
The petitioners did not assert the violation of Article 26 as the right is reserved only to a
religious denomination. Hence, the petitioners have no right to manage religious affairs.
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.’’13
‘'Institutions as such cannot practice or propagate religion, it can be done only by individuals
persons and whether these persons propagate their personal view or tenet for which the
institution stands is immaterial for the purposes of Article 25.''14
Thus the practices can be done in any of the Ankuran, the law of acquisition or usage cannot
be held to be invalid as that relates to land and not the individual's right to profess, practice or
11
Sri jagganatha temple v. Chintamani Khuntia, AIR 1997 SC 3839.
12
The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt,1954 AIR 282.
13
Mohammad Ali Khan vs. Special Land Acquisition Officer,1978 AIR 280.
14
Supra note12.
20
propagate religion. As the right to practice religion has no nexus with any particular place
that right cannot be deemed infringed by the acquisition of any particular piece of land.15
Thus Article 25 will have to be read subject to other provisions of Part III of the Constitution.
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 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 a 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.
3. Article 25 permits to make legislations aiming at social welfare
It is submitted that restrictions by the State upon the free exercise of religion are permitted
both under Arts. 25 on grounds of public order, morality, and health. Clause (2) (a) of Article
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.
Article 25 permits legislation in the interest of social welfare and reform as a part of public order,
national morality and collective health of the people. A religious practice that is not an integral part of
the practices of the religion is not protected under Article 25.16There is no violation of Art.25 by
constructing a metro under the Ankuran.
A welfare scheme that is non discriminatory in its object cannot be challenged if its ‘incidental effect''
is more or less favourable in the case of individual worshippers.17
15
Supra note13.
16
3Javed v. State of Haryana AIR 2003 SC 3057.
17
Cf.Abington school Dt. V. Schempp,374 US 203(1963).
21
The present metro rail cannot be re-aligned only because of a part of worshippers challenge
it. The word social welfare would cover the entire public sphere where the collective interest
of society should prevail over individual rights, for the common good.18
There are various benefits due to metro rail in urban areas they not only facilitate easy and
quick movement of people but also have a positive impact on the economic growth and
quality of life. All the benefits and passenger capacity are mentioned in the metro rail
policy,2017.
Thereby, the respondents humbly submit that there is no violation of the fundamental of the
petitioners under Article25 and there is a great need for metro rail in a state like Aryavartha.
ISSUE 3 : WHETHER THERE WILL BE ANY CONFLICT WITH ANY

FUNDAMENTAL RIGHTS UNDER ARTICLE 21 OF THE CONSTITUTION OR
WHETHER THE TWO FUNDAMENTAL RIGHTS CAN BE BALANCED?
The counsel on behalf of the respondent Contends that the issue whether two fundamental
rights can be balanced [A]will be dealt by the counsel for the respondents in a three fold
manner covering that (1)there is violation of article 21,(2)there is no possibility of
alignment(3)and there is no need for balancing of fundamental rights
(1) Violation Of Article 21
Article 21 of Indian constitution states “No person shall be deprived of his life or personal
liberty except according to a procedure established by law.”
The interpretation of the article can be drawn throught various cases. The word ‘life’ in
Article 21 of the Constitution is not merely the physical act of breathing. It does not connote
mere animal existence or continued drudgery through life. The word “life” under article 21
means “quality of life” 19 , it does not connote mere existence of life it has much wider
meaning which includes right of food, and reasonable accommodation to live in,20 and the
right to a wholesome environment21, right to livelihood, right to health, right to pollution free
18
DURGA DAS.BASU, Commentary on the constitution of India, volume3,
19
Francis coralie v. Union territory of delhi, AIR 1994 SC 1844
20
Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
21
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
22
air22 etc. Also ICCPR23, UDHR24 recognizes right to life .
ICESCR recognizes the right of everyone to adequate standard of living25.This includes, the
right to adequate food, clothing, housing, and "the continuous improvement of living
conditions”. It is humbly submitted that in a developing state like Aryavartha, traffic
congestion and poor travelling conditions are common problems, by having access to the
benefits and conveniences of metro line the people of Aryavarta can improve their standard
of living.
Article 21 of the Indian constitution also includes the right of enjoyment of pollution free air
and water for full enjoyment of life.26 This right encompasses wide variety of many other
rights such as protection of wildlife, forest, lakes, ancient monuments, faina-flora, unpolluted
air, protection from noise, Air and water pollution, maintenance of ecological balance and
sustainable development 27 ,The establishment of metro line will facilitate all these rights
mentioned above.
It is humbly submitted that in the republic of India in the state of Maharashtra in a similar
circumstance where Managing director of the metro rail explained how right to life is violated
due to a delay in project execution and the following observations were made by her in the
case of Jamshed Noshir Sukhadwalla And 4 Ors Vs Union Of India And 11 Ors through the
following affidavit dated 26.6.2018
Delay in project or changing the course of project directly effects right to life
Ashwini Bhide, who is now managing director of the MMRC said "once it is operational,
more than six lakh vehicles daily will be off Mumbai roads. Apart from being an eco-friendly
mass transport system, it will also help save over 200 lakh litre of fuel per day. It may be
prudent to mention here that globally, the public transport system density is six people per
square metre; eight persons is considered to be dense. Now, cut to Mumbai where we have
14-17 people per square metre. This is the main reason why people are forced to travel in
subhuman condition on trains and buses. Many end up dying."
22
Subhash kumar v. bihar AIR 1991 SC 420 : (1991) 1 SCC
23
Article 6 of iccpr
24
Article 3 of UDHR
25
Article 11 of ICESCR
26
Subhash kumar v. bihar AIR 1991 SC 420 : (1991) 1 SCC
27
M.C Mehata v union of india ,(1996) 4 scc 750, Narmada bachao andolan v union of India,Animal and
environment legal defence fund V union of India,(1997)3 scc 549,
23
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 com Further, the
trains operating on MML-3 are engineered to use the energy regenerated during braking for
captive use. On 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. .
it is estimated by MMRC that Reduction in Vehicle trips/day in year 2021 is 456,771 and in
2031 is 554,556, reduction in consumtion Reduction In Pollution Emission Due To
Reduction in no. of Vehicle Trips (Tonnes/Year) is 6800 in 2021 and 8256 in 2031 and
reduction in consumption of petrol/diesel in 2021 is 243,390 and in 2031 is 295,495.”
Taking reference from the above circumstances and effects, it is further submitted that
through metro project the citizens will be able to avail benefits such as reduction in pollution
emission 28 , healthy travel conditions 29 , less consumption of fuel, lower rate of accidents,
relives traffic problem in the city, safety for women travelers, eco friendly transport system
and many more.
It is humbly submitted that a metro tunnel consumption of energy is more efficient than road
based system it also causes less sound pollution and no air pollution. So the metro tunnel
constitutes the removal of pollution of air which in turn increases the quality of life.
Maintenance of health and preservation of environment also comes within the preview of
Article 21. Pollution effects the life of its citizen and it a factor in causing many health
problems of the citizens.
Accidents in metro are far less than other transport .every year 25000 to 30000 deaths occur
because of the local trains in Mumbai.30
Metro is clean when compared to other transportation facilities in Indusland. Right to life
guaranteed under article 21 also includes within its ambits right to health and medical care.31
28 The effect of Metro rail on air pollution in Delhi:

(http://www.indiaenvironmentportal.org.in/content/376542/the-effect-of-metro-rail-on-air-pollution-in-delhi/)
29
Aprajitha varma,Tata institute of social sciences Hyderabad, End user impact of metro rail in
Hyderabad(.https://tiss.edu/uploads/files/End_User_Impact_of_HMR.pdf)
30
The economic times, 3,014 commuters killed on Mumbai railway tracks in 2017: RTI , Jan 26 2018.
31 State of Punjab and Ors. v. Mohinder Singh Chawala,Civil Appeal No. 16979 of 1996 (Arising out of SLP (C)
No. 1247 of 1996)Decided On, 17 December 1996
24
Social welfare and economic progress is salient features of Indian
Constitution32.transportation, infrastructure is one of the key factor for economic progress
and welfare of the state.
It is humbly submitted that construction of metro is necessary for economic progress and
welfare of the state and delay in the project affects this process.
It is respectfully submitted that the Petitioners have failed to prove that the passage of the
metro tunnel underneath the premises of the Ankuran would lead to destruction of an
essential practice of the Saras faith which destroys the very religions itself and therefore,
submissions of the Petitioners lack any merit and delay in metro project not only effects the
welfare of the state but also impedes the state economically.
(2)No Possibility Of Alignment .
It is humbly submitted that in the republic of India in the state of Maharasthra in a similar
circumstance33 where there was no possibility for alignment and the reason for constructing
an underground metro is that it is a congested area in Mumbai and if elevated metro has to be
constructed there might be need to demolish many structures including heritage buildings, for
example the reason why Delhi metro is not totally over ground is because lack of availability
of land and traffic congestion.
Precision and Continuity34 is very important for underground metro construction without this,
there will be no metro route. All the tunnels segments should be continuous (including station
platforms). Track should be continuous. Even a centimeter displacement may drift the whole
project.
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. 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.
32
47 Narain Das Jain v. Agra Nagar Mahapalika, (1991) 4 SCC 212; Jagdish Prasad v. M. C .D, AIR 1993 SC
1254; K.K Konchuni v State of Madras and Kerala, AIR 1960 SC 1080, Lala Ram v Union of India, (2015) 5
SCC 813, Dantuluri Ram v. State of A.P, (1972) 1 SCC 421
33
Jamshed Noshir Sukhadwalla And 4 ... vs Union Of India And 11 Ors , WRIT PETITION NO. 2890 OF 2018
34
Tunnel engineering survey at Delhi metro phase-III CC04 project(https://isgindia.org/wp-
content/uploads/2017/10/JoG_1102_04.pdf)
25
The project alignment plan was also displayed at various locations 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. In similar circumstances in megnad
saras community have not made any suggestions nor objections to respondents and proposed
construction was around
100 mtrs away from the said Ankuran. When the Petitioners moved the Hon'ble Aaryavarta
High Court35.At this situation the issue about realignment is out of MMRCL’s hand and
shifting the tunnel from its present alignment would entail further cost and burden the state
exchequer Taking reference from the case of Jamshed Noshir Sukhadwalla And 4 Ors vs
Union Of India And 11 Ors where it was established that one of the important factors is that
the subject Metro line is referred to as up line and the metro tunnel on the other side has
already been constructed and the subject metro tunnel passing through Atash Behram is going
upwards, therefore, 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. Similarly in the present case, realignment will cause severe
disturbance in the construction of the Metro line as such.
Insofar as the proposal submitted by the petitioners for realignment of up-line is concerned, s
various technical, architectural and designing elements are required to be taken into account
while considering the alternate proposals of the petitioners. The proposed Metro Station has
been designed after careful and detailed planning. The station has to be compliant with all
safety protocols considering that it is to serve a huge volume of people.36
35
Fact sheet
36
Updated Environmental Impact Assessment Report by MMRC ,November 2018.
26
(3) No Need Of Balancing Of Fundamental Rights
Balancing of the fundamental rights aims to ensure that the “paramount collective
interest”37 that is the larger public interest is ensured, there may be situations where conflict
may arise between two fundamental rights. Situation can be conflict on inter fundamental
rights, intra fundamental rights and, in certain peculiar circumstances, in respect of some
person one fundamental right enjoyed by him may come in conflict with the other
fundamental right guaranteed to him. In all such situations, the Court has to examine as to
where lies the larger public interest while balancing the two conflicting rights. It is the
paramount collective interest which would ultimately prevail. A three step formula has been
laid in this regard, where firstly; the facts and the circumstances of both such violations are
considered. Secondly, the competing interests are measured and thirdly a balance is sought to
creatively interpret the violations by ensuring that none of them is completely made extinct.
The conflict between two fundamental rights arises when there is violation of fundamental
rights on both the sides of the parties here in this case there the art. 21 of the citizens of
Aryavartha is violated but there is no violation of art.25 of the constitution so art. 21
automatically prevails and there will be no question of balancing.
It is humbly submitted that religion has morphed into different configurations in modern
societies and hence we need more holistic approaches to comprehend its complexities. The
rationality of any religion or a particular ritual is mostly determined by the essence of the
particular religious practice, One should not forget that if it were not for the judiciary’s
activism, the rigid societal structures would have still clawed on to the unbending orthodoxy.
ISSUE-4: WHETHER THE PETITIONERS HAD ESTABLISHED A

FUNDAMENTAL RIGHT UNDER ARTICLE 29 OF THE CONSTITUTION AND
WHETHER THERE WAS ANY VIOLATION THEREOF?
The counsel for respondents humbly submits that there is no violation of Article 29 of the
constitution because of the said construction as it will not desecrate spiritual sanctity and (A)
endanger structural safety of Ankuran and hence there is no threat to their culture and also
that (B) the construction is necessary in light of fulfilling Directive Principles of state Policy.
1.No Threat To Structural Stability.
The counsel humbly submits that it is apparent that the Petitioners have relied on mere
speculations and not actual facts to state that the construction of metro rail threatens the
structural integrity of the Fire temple.
37
Mazdoor Kisan Shakti Sanghatan vs Union Of India , [Writ Petition (Civil) No. 1153 of 2017]
27
Whether there is a threat to structural buliding because of the said construction is dealt in
three fold manner covering that (1.1) Process followed for the construction (1.2) effects of
controlling blasting method (1.3) what are the various studies/reports/analysis submitted in
the favor of respondent.
It is humbly submitted that there is no threat to structural building because MMRCL has
already taken measures needed for the structural safety, It is further submitted that in the
republic of India in the state of Maharashtra in a similar circumstance38 where to analyze this
aspect, the Committee (five members of the Board of respondent No.4) 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.
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.
Shantaram Dalvi, DGM (Civil)Mumbai Metro Rail Corporation states that construction of the
MML-3 is being carried out after exercising the extensive due diligence. Paragraph-7 of the
affidavit-in-reply reads as under:
"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 fire temple 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 from Impacts of Tunneling and Excavation Works".
Building survey report:
As per the Building Condition Survey Report (hereinafter referred to as "BCS report"), the
fire temple is classified as 'Slight', (i.e. Building with Moderate non-structural cracks, severe
non-structural cracks and presence of water seepage). It is stated that although 280 meters of
tunneling work has been undertaken in the metro area near fire temple by Respondent
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 "Very Severe" (i.e. Building with Deteriorated structural/load
bearing elements, heavily exposed reinforcement in columns and beams of framed structures,
38
Jamshed Noshir Sukhadwalla And 4 ... vs Union Of India And 11 Ors 38
28
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.
It is 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 classified as "Moderate" and no damage is
caused to any of these structures.
The counsel humbly submits the above observations so as to draw conclusions with the
present issue at hand.
(1.1) Process followed for construction to enSure there is no structural damage.
It is humbly submitted that in similar circumstances in republic of India, Reliance is placed

on building condition survey report prepared by MMRC's general consultants by counsel.
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
(a)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 meters. Each
side of the MML-3 centre line 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%.
(b)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. 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
29
required.
(c)Monitoring-
Monitoring will be used to ensure that actual impacts of excavation do not exceed the set
limits and if necessary, monitoring is 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 piezometric
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 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".
(1.2) The controlled blasting method will not directly impact the structural stability of the
Ankuran.
It is humbly 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.
In similar circumstances in republic of India, The Mumbai Metro Rail Corporation (MMRC)
project director S K Gupta said “the safest norm for vibrations from blasts is 5 mm per
second whereas the actual. Vibration levels measured for each blast has not even crossed the
3mm per second level L&T have appointed CSIR-Central Institute of Mining & Fuel
Research (CIMFR), Nagpur as a consultant for design and monitoring of the controlled blast”
Dr Pradeep singh director of CSIR said that “every blast is measured on seismography
instrument installed near the blast site and vibrations have not crossed the limit till date,
Thick muffles are put so that noise and tremors are not felt on the ground. it is further noted
30
that three layered muffling system is used to prevent flying splinters which consists of rubber
matt(weighing around 1 ton), sand bag and wire mesh. In controlled blasting, Muffling
(process of covering blast holes properly before blasting) is carried out to prevent fly rock
(debris which is ejected through air by explosive blast). Besides, blasting is done in a
confined state39”
(1.3)The Various Studies/Reports/Analysis Submitted In The Favour Of Respondent.
In the republic of India in the state of Maharashtra in a similar circumstance where the VJTI
Experts under the order of this Court (divisional bench of Mumbai high court), carried out
and examined the impact of proposed Metro Rail work including tunneling and constructing
of proposed metro Station near fire temple, both constructions as well as operating of Metro
Rail on structural safety of Fire temple.
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
they have submitted various measures to be carried and found no reasons why this project has
to be alignment and further according to their report there is no threat to structural stability.
Further counsel submits that the science in tunneling and underground space is constantly
blooming and a lot of research and development has happened in this field and therefore
methods in various risks and management techniques have evolved and further companies
generally involved in underground projects have global experience in infrastructure projects
and Project Managers, Engineers deployed at the site are highly experienced in constructing
large and complex projects.
B. Necessity Of Metro Construction In Light Of DPSP.
The petitioners right under Article 29 also needs to be considered in the light of Directive
Principles in Articles 38, 47, 48A as directive principles are ‘instrument to instructions’.40
In Unnikrishnan v. State of Andhra Pradesh41 and a host of other cases42 it was held that
Fundamental Rights and Directive Principles cannot be read to be exclusionary of each other.
Fundamental Rights are a means to achieve the goals specified in the Directives, and they
must be construed in the light of Directive Principles.
Fundamental rights thus be interpreted in the light of the directive principles and the latter
should whenever and wherever possible, be read into the former43
Das C.J., in Re Kerala education bill 44 said that the courts must not entirely ignore the
39
Chittranjan tembhekar, Times of India, 800 silent blasts pitch for underground metro station, SEP 27 2018.
40
Kavitakait,DR.BR AMBEDKAR FATHER OF INDIAN CONSTITUTION,
(http://www.legalservicesindia.com/article/1609/Dr.-B.R.-Ambedkar,-The-Father-of-Indian-Constitution.html)
41
Unnikrishnan v. State of Andhra Pradesh,1999 AIR 2178.
42
Delhi Transport Corporation v. DTC Mazdoor Congress (SC)1990-9-63
43
Akhila bharatiya soshit karamchari sangh (railway) v Uniob of India,(1981) 1 scc246:AIR 1981 SC 298
44
In Re: The Kerala Education Bill, ... vs Unknown on 22 May, 1988
31
Directive Principles and the principle of harmonious construction45 should be adopted to give
effect to both Fundamental Rights and Directive Principles as much as possible. It was stated
that while interpreting a statute, the courts would look for the light to the ‘lode star’ of
Directive Principles.
A proper interpretation of all these provisions indicates that any demand of the petitioners for
enforcement of their Fundamental Right under Article 29 must be balanced against the rights
of the citizens at large. If the fundamental Rights were taken as unchangeable, the much
needed dynamism may be achieved by properly interpreting the Fundamental Rights in the
light of Directive Principles46.
The Apex Court laid down two rules of construction, one- in case of a conflict between the
right of the individual and the laws aiming to implement socio-economic policies, in
pursuance to Directive Principles, weight should be given to the latter, and two- every
legislation enacted in pursuance of Directive Principles should be construed as one purporting
to be in public interest, or as a reasonable restriction to the FundamentalRights.47
Placing reliance Bijoya Cotton Mills v. State of West Bengal, counsel submits that metro
project is essential to improve environment (Art-48A), Improve standard of living & health
(Art47) and for the welfare of the people (Art38).
In Kesavananda Bharti v. State of Kerala where it is expressed that fundamental rights of the
few must “subserve the common good” as embodied in the Directive Principles, and that
whenever the Legislature made a law to implement a Directive Principle the court should up-
hold it notwithstanding its inconsistency with any Fundamental Rights, and irrespective of
the rule of harmonious construction as between different mandates of the Constitution48
The Counsel humbly requests the court to take into consideration the Metro railways act,
2002 in India under which metro constructions across the nation are carried out so that state
can further implement directive principles and implement the concerned law in Indusland
similarly.
It is humbly submitted that the petitioners had failed to establish that there is violation of any
fundamental right under Article 29 of the Constitution as there is no threat to spiritual
sanctity and structural safety of fire temple.
45
Hanif Quareshi Mohd. v. State of Bihar,1958 AIR 731.
46
Sajjan Singh v. State of Rajasthan ,1965 AIR 845.
47
Bijoya Cotton Mills v. State of West Bengal,1955 AIR 845.
48
Kesavananda Bharti v. State of kerala,1973 4 SCC 22.
32
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare:
1. That the beliefs and practices are NOT essential & Integral parts of saras religion.
2. That the construction of metro rail under Ankuran will not violates Art.25,Art.29 enshrined
under part III of the constitution of India.
3.That to continue with the construction of the tunnel under the present alignment without
any change.
And pass any such order, writ or direction as the Honourable Court deems fit and proper, for
this the Appellants shall duty bound pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR THE RESPONDENTS.
33
.
34

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7TH KIIT UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE

SPECIAL LEAVE PETITION

SLP (CIVIL) NO.__OF 2019

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUSLAND

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

2.There should be a fundamental change to the religion.....................................................16

3. scriptures are important to substantiate the beliefs highlighted in the Petition...............17

A)NO DESECRATION OF SPIRITUAL SCANTITY.........................................................18

B) NO VIOLATION OF FUNDAMENTAL RIGHT UNDER ARTICLE 25....................19

1.The practices should form essence of the religion........................................................................19

2. The right to freedom is subject to other parts of part III............................................................20

[A] THE TWO FUNDAMENTAL RIGHTS CAN BE BALANCED................................22

(1) Violation Of Article 21.....................................................................................................23

(3) No Need Of Balancing Of Fundamental Rights.................................................................27

4.Whether the Petitioners had established a fundamental right under Article

(1.1) Process followed for construction to ensure there is no structural damage...................28

(1.3)The Various Studies/Reports/Analysis Submitted In The Favour Of Respondent...........31

[B] NECCESSITY OF METRO RAIL IN LIGHTS OF DPSP.........................................31

AIR All India Reporter

International Covenant on Civil and Political

SLP Special Leave Petition

SCC Supreme Court Cases

1. GOVINDLALJI V. STATE OF RAJASTHAN AIR 1963 SC 1638

2. INDIAN YOUNG LAWYERS ASSOCIATION V. STATE OF KERALA, AIR 2015 SC

3. N.ADITHYAN V. TRAVANCORE DEWASWOM BOARD, AIR 2002 SC 3538.

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15. MAZDOOR KISAN SHAKTI SANGHATAN VS UNION OF INDIA , [WRIT

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17. SUBHASH KUMAR V. BIHAR AIR 1991 SC 420 : (1991) 1 SCC

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20.NARMADA BACHAO ANDOLAN V UNION OF INDIA, (2017)3 SC 268.

21.ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND V UNION OF

22.STATE OF PUNJAB AND ORS. V. MOHINDER SINGH CHAWALA,CIVIL APPEAL

24. JAGDISH PRASAD V. M. C .D, AIR 1993 SC 1254.

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30.AKHILA BHARATIYA SOSHIT KARAMCHARI SANGH (RAILWAY) V UNIOB OF

35. KESAVANANDA BHARTI V. STATE OF KERALA, WRIT PETITION: (CIVIL) 135

1.UPDATED ENVIRONMENTAL IMPACT ASSESSMENT REPORT BY MMRC

2.TUNNEL ENGINEERING SURVEY AT DELHI METRO PHASE-III CC04 PROJECT(

3.THE ECONOMIC TIMES, 3,014 COMMUTERS KILLED ON MUMBAI RAILWAY

4.APRAJITHA VARMA,TATA INSTITUTE OF SOCIAL SCIENCES HYDERABAD,

5.CHITTRANJAN TEMBHEKAR, TIMES OF INDIA, 800 SILENT BLASTS PITCH FOR